NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI.. REVISION PETITION NO.435 OF 2001 (From the order dated 17.2.2000 in Appeal No.1310/98 of the State Commission, Madhya Pradesh) Mahindra & Mahindra Ltd. Petitioner Versus Lions Club Rewa, Klions Eye Hospital & Anr. Respondents
BEFORE:
HONBLE MR. JUSTICE D.P. WADHWA,
PRESIDENT.
HONBLE MR. JUSTICE J.K. MEHRA,
MEMBER.
MRS. RAJYALAKSHMI RAO, MEMBER.
MR. B.K. TAIMNI, MEMBER.
Central Excise Act – exemption
notification – refund
of duty on vehicle used as ambulance – manufacturer failing to seek
refund within time,
deficiency service.
For
the Petitioner : Mr. Aditya Narain, Advocate
For Mr. J.B. Dadachanji & Co.,
Advocates
For
the Respondent No.1 : Ms. Pragati Neekhra, Advocate
For
the Respondent No..2 : NEMO, Advocate.
DATED THE 14TH DECEMBER, 2001:
JUSTICE D.P. WADHWA, J. (PRESIDENT)
Petitioner was opposite Party No.2 before the
District Forum, Rewa. He is
manufacturer of motor vehicles.
Opposite Party No.1 Star Automobiles
is its dealer. Complainant who
is now first respondent before us filed
a complaint in the District Forum alleging deficiency in service by both the
opposite parties. Its case was that it
was running a Eye Hospital in Rewa and for that purpose it purchased a van
manufactured by the petitioner on 3.3. 97 for Rs.3,75,785/-. The van was purchased from the dealer. It is not disputed that the van was
converted into ambulance and was duly registered with the RTO, Rewa. After the
vehicle was registered with RTO complainant sent a form duly filled up to the dealer by registered post on 9.5.1997 for payment to
it of the excise subsidy. On 13.11.1997
complainant sent a letter along
with permission dated 21.12.1993
from the Health Department of the State
Government of Madhya Pradesh, Rewa Office permitting the complainant to
run Eye Hospital. This was given to the dealer. This was on account of the fact that complainant was entitled to 15% excise
subsidy on the total price after registration of the jeep as ambulance. In spite of various letters and visits to
the dealer nothing transpired and
ultimately a legal notice was sent by registered post to both the dealer and the manufacturer but
too without effect. This led to the
filing of the complaint.
It was
the case of the dealer that it was
merely acting as a post office and it was for the manufacturer the petitioner
to claim refund of the excise duty from
the Central Excise Department. The dealer said it was in turn approaching the petitioner and it was not therefore, negligent. Petitioner denied the claim of the
complainant altogether and said that
the complaint was not maintainable.
The question that arose before the
District Forum was whether
service rendered by the manufacturer and the dealer was deficient.
Complainant led evidence to show that it was guaranteed by the dealer
that it will be entitled to refund of
15% subsidy on registration of the vehicle as ambulance. Since the amount of subsidy was not
refunded to the complainant in spite of his approaching the dealer and manufacturer time and again,
District Forum allowed the complaint and held that complainant was entitled to
Rs.56,367/- as 15% excise subsidy from the dealer and also cost of Rs.500/-.
Against
that order of the District Forum, the dealer
filed appeal before the State Commission. The
petitioner-manufacturer was also
one of the respondents. State
Commission found that it was the responsibility of the manufacturer for claiming refund of the excise duty and not that of the dealer. State
Commission, therefore, modified the order of the District Forum to the extent
it was held that both the dealer and
the manufacturer would be jointly and
severally liable to make the payment.
It is also ordered that in case the dealer make the payment he shall be
entitled to recover the same from the manufacturer. Now it is the manufacturer feeling aggrieved has filed this
petition. When the matter came up
before us for admission we passed the following order:
Our attention has been drawn to
clause (e) of Exemption Notification
No.66 (Page 39) where exemption has
been granted to ambulance of the Government Hospitals or the Hospitals which
are registered with the Government Department or local authorities. It is stated that the Hospital of the
IInd Respondent/Complainant is not so
registered. However, there is a letter
by which Health Department of the State of Madhya Pradesh has allowed the IInd
Respondent/Complainant to run
the Eye Hospital. Though we issue
notice, we require the Petitioner to apply to the Central Excise Authorities for refund of the Central Excise
duty as permissible under the aforesaid notification. List this Revision Petition on 17.7.2001.
In
pursuance of that order petitioner did apply seeking refund but that application was rejected by the
Deputy Commissioner, Central Excise
vide order dated 24.5.2001. That order
has been brought on record, relevant para of which we reproduce as under:
3. The details of the refund claim, in brief, are that a vehicle falling under Ch. No.87.03 cleared
on payment of duty @ 40% adv., on invoice No.1690 dt. 19.11.96 was subsequently
registered as Ambulance in the name
of Rewa Lions Eye
Hospital, on 13.3.1997 with the R.T.O.
Rewa. According to the notification, (i) the
manufacturer has to furnish a certificate from the R.T.O . to the effect
that motor vehicle has been registered
as ambulance, within three months of the clearance of the said motor
vehicle from the factory or such
extended period as the Asstt. Commr. may allow. In this case, the manufacturer did not
request for extension for this purpose.
(ii) The exemption in case
of ambulance is only applicable for hospitals, nursing homes etc. as the Central Govt. may notify in the Official Gazette. The
vehicle was registered as ambulance in the name of Rewa Lions Eye Hospital.
From a copy of certificate No. 643, issued by the Govt. of Madhya Pradesh, it
seems that the certificate was issued to Lions Club, Rewa, which was
registered on 14.9.1993 under Societies Registration Act, 1973 (S.No. 44 of 1973).
The assessee also filed a copy of letter dated 21.12.1993, issued by the
Chief of Medical and Health Dept. , Rewa, permitting the Lions Eye Hospital,
Rewa to conduct eye related surgeries/operations. However, the manufacturer did not produce any documents
evidencing that the Lions Eye Hospital, Rewa was notified by the Central
Government in the official
Gazette. (iii) The refund claim shoauld be filed in terms
of Section 11-B of the Central Excise
Act.
4. On verification of the refund
claim, it appeared that the refund claim was not filed in time under sec.11-B
iof C.E. Act. And is liable for rejection.
In view of the foregoing, I pass the following order.
ORDER
I reject the refund application
dt. 24.5.2001 filed by the assesses
under section 11-B of Central Excise
Act, 1944.
It could not be disputed
that immediately the van was registered
as ambulance a letter was addressed by the complainant to the dealer who had promised that
complainant would be entitled to refund of 15% of the excise duty in case
the vehicle is registered as an
ambulance. Now the dealer says he had
been writing to the manufacturer requiring
it to seek refund. But there was no action on the part of the
manufacturer. It was contended before
us that that Eye Hospital run by the complainant is not totally registered
under the relevant notification General
Exemption No.66 which is issued under
the Central Excise Act, 1944 by the Central Government. It is not disputed that there could not
be refund of excise duty @ 15% in case the vehicle was registered as
ambulence. This exemption applied
under the following circumstances:
43.(a)
.
(e) In the
case of ambulance, the concessional rate of duty shall apply only when the
ambulance is supplied to:
(i) hospitals, nursing
homes or sanatoriums run by the Central Governments or a State Government or a
Union Territory Administration or a local authority, or are registered as such
with
(ii) any Department of the
Central Government, or a State Government or a Union Territory Administration
or a local authority; or
(iii) the India Red Cross
Society.
Now it will be seen from
the order of the Deputy Commissioner
that he rejected the claim of the petitioner-manufacturer who had applied for
refund on the ground that claim application was not filed within time under
Section 11-B of the Central Excise Act.
It
is for the first time before this
Commission that an issue is being
raised that
complainant-Hospital does not
satisfy the conditions for claiming exemption. In our view, case of the complainant falls within the exemption
notification. Even otherwise it has to
receive a liberal construction inasmuch as
it is for the benefit of the patients.
But the fact remains that till we passed the order on 19.3.2001 requring
the petitioner to seek refund on the basis of the notification at no point of time petitioner ever informed the complainant that he was ineligible and no application seeking refund was at all filed. It is a clear case of deficiency on the
part of the petitioner, the manufacturer.
We, therefore, find no ground
for us to interfere with
the impugned order of
the State Commission in
our jurisdiction under
clause (b) of
Section 21
of the Consumer Protection Act, 1996. This revision petition is dismissed.
Since
the petitioner was availing stay of the
impugned order we direct that the amount as awarded by the District Forum shall
be paid to the complainant with
interest @ 12% per
annum from the
date of the order of the State Commission till payment. Complainant
shall also be entitled to cost which we assess at
Rs.2,000/-.
J
(D.P. WADHWA)
PRESIDENT
J
(J.K. MEHRA)
MEMBER
(RAJYALAKSHMI RAO)
MEMBER
.
(B.K. TAIMNI)
MEMBER