TASKEEN AHMED vs KAVISHA MOTORS PVT. LTD.

THIS is an appeal against the order dated 11.11.2002 passed by the District Forum, Nainital whereby the complaint of the complainant for refund of the excise duty was rejected by the learned Forum.

THE brief facts of the case are that the complainant purchased a Maruti Van from Kavisha Motors on 24.8.1999. He has purchased the Maruti Van for taxi purposes and according to rules, he was entitled for the rebate in excise duty. THE complainant has paid a sum of Rs. 32,000/- as excise duty but the application of the complainant for the refund of the excise duty was rejected on 10.8.2000 on the ground that the original registration certificate has not been sent along with the claim. From the records, it is clear that the complainant has submitted the papers to opposite party No. 1, Kavisha Motors on 17.9.1999. THE papers sent to the opposite party No. 1 were Indemnity Bond along with Annexure-B, receipt of payment of passenger tax, certificate of registration of the vehicle, fitness certificate. THE papers were sent to Kavisha Motors through paper No. 28 dated 6.11.1999. It was received there on 8.11.1999. THE receipt is there on paper No. 28 of this appeal. THE application for refund was rejected merely on the ground that registration certificate was not sent, although the complainant has sent the same to the opposite party No. 1, Kavisha Motors. THEn the complainant filed the complaint against M/s. Kavisha Motors and Deputy Commissioner, Central Excise. Kavisha Motors filed written statement and alleged that the complainant is not a consumer and the matter of refund of excise duty comes within the definition of refund of tax and, therefore, complaint shall not lie before the learned Forum. The Deputy Commissioner, Central Excise did not file any written statement. However from the judgment of the learned Forum, it appears that the Excise Commissioner has sent a letter that the claim was not received by them within time, therefore, the claim has been rejected. If there was any grievance, an appeal should have been filed before the Appellate Commissioner. The claim has been lodged by M/s. Maruti Udyog and it has been rejected. M/s. Maruti Udyog can file an appeal before the Excise Commissioner.

After taking the evidence of the parties, the learned Forum held that M/s. Maruti Udyog has not been impleaded party to the proceedings, therefore, the complainant cannot get refund from the opposite party No. 1 and Central Excise Commissioner. It was held that this matter was not within the domain of the Consumer Forums.

BEING aggrieved by the order of the learned Forum, the present appeal has been filed. We have heard the learned Counsel for the parties and gone through the records. The papers were submitted on 6.11.1999 to Kavisha Motors and it was received by them on 8.11.1999. It detained the papers up to 4.1.2000 and has got the limitation run away. This is definitely deficiency in service of Kavisha Motors. It is on 10.8.2000 that the Kavisha Motors informed the complainant that his claim for refund has been rejected. This is definitely deficiency in service of Kavisha Motors. From the letter of Deputy Commissioner, Central Excise, it appears that the papers were submitted by Kavisha Motors on 4.1.2000 and on 12.1.2000 the Maruti Udyog has referred the matter to Excise Department. It did not cause any delay. The Maruti Udyog submitted the papers immediately after the receipt and as there was no delay by Maruti Udyog, there was absolutely no deficiency in service on their part. The delay has been caused solely by the dealer. A plea was raised that the District Forum has got no jurisdiction to decide the case. Two questions are involved in this case. Firstly the refund of the excise duty. Secondly delay in sending the papers. It is true that the case regarding the refund of excise duty cannot be decided by District Forum on merits whether the complainant was entitled to refund or not but if his claim itself has not been submitted in time and delay has been caused and which only is the ground for rejection of the claim, then there is definitely deficiency in service on the part of Kavisha Motors to refer the matter after delay, which accounted for the rejection of the claim. Therefore, for this deficiency in service, the complainant is entitled to file a complaint before the District Forum.

NOW the question is whether the complainant is a consumer or not? He has paid the price on the vehicle. He has also paid a sum of Rs. 32,000/- as excise duty. This duty was to be refunded to the complainant. The price of the vehicle along with excise duty was paid to the opposite party No. 1 Kavisha Motors, which is consideration for the sale of the vehicle and this includes post sale services as well. After the receipt of the price, the dealer cannot say that my duty is now over, you yourself get the refund. The refund is always to be made through the dealer. The papers are submitted to the dealer. The dealer gets commission on sale of every vehicle. This commission is nothing but consideration. Thus the complainant has paid consideration not only of price but all consequential services after sale as well. If the complainant is entitled to refund, the price as paid by him shall also serve as consideration. The complainant has to avail the services of opposite party No. 1 for submitting the application for refund within time and if the opposite party No. 1 did not submit the application within time, again to emphasize that is necessarily deficiency in service on their part. We are concerned here only with the deficiency in service and grant of compensation for that. The claim has been rejected only because the opposite party No. 1 did not submit the claim within time. It was argued before us about the judgment of Rajesh Bhatti decided by the National Commissioner under consideration of the Hon''ble Supreme Court. We do not know what is the fate of the case but here the dispute is not regarding the merit of the case of refund but the dispute is regarding the deficiency in service and irrespective of the judgment of the Bhatti''s case, the complainant is entitled to compensation from the opposite party No. 1, Kavisha Motors. It is true the opposite party No. 1 is an agent of Maruti Udyog but here the question of agency does not arise. Both the parties act in their individual rights. They have to perform their own duties and if the opposite party No. 1 has been negligent in performing its individual duties, the question of vicarious liability will not arise, particularly when Maruti Udyog has not been made party to this complaint. We find that the complaint was fully maintainable and on the facts and circumstances of the case, it was a fit case to be allowed against the opposite party No. 1 because it did not submit the application along with the records to the Maruti Udyog within time. The complainant is entitled to the refund of the amount along with interest from the opposite party No. 1. ORDER The appeal is hereby allowed. The judgment and order dated 11.11.2002 is hereby quashed. The complaint is hereby allowed against opposite party No. 1 and it is hereby directed that the opposite party No. (1), i.e., Kavisha Motors shall pay a sum of Rs. 32,000/- to the complainant along with interest @ 9% payable from the date of complaint i.e., 25.8.2000 till the date of actual payment. However, an appeal is pending before the Excise Commissioner and if that appeal is allowed and the amount is directed to be refunded, the amount shall go to Kavisha Motors. Cost of this appeal shall be easy. Appeal allowed.