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VIJAY RAJ KHARIWAL versus UNION OF INDIA & ORS.

High Court of Rajasthan

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VIJAY RAJ KHARIWAL v UNION OF INDIA & ORS. - CW Case No. 2697 of 2005 [2007] RD-RJ 2250 (26 April 2007)

D.B. CIVIL WRIT PETTION NO.2697/2005.

Vijay Raj Khariwal

Vs.

Union of India and ors.

Date : 26th April 2007.

HON'BLE MR. P.B.MAJMUDAR, J.

HON'BLE MR. DINESH MAHESHWARI,J.

Mr. Manoj Bhandari, for the petitioner

Mr.Rajesh Joshi, } for the respondents.

Mr.Anil Sharma } ...

BY THE COURT (PER P.B.MAJMUDAR,J.)

REPORTABLE

Heard the learned counsel for the parties.

While entertaining the writ petition, the Division

Bench of this Court has passed the following order on 13.11.2006:

"The dispute in this writ petition relates to refund of excise duty. The appellant claims to have purchased a Maruti Esteem Car of AX model manufactured by the Maruti Udhyog

Limited. Claiming to be a physically handicapped person suffering from Post Polio Palsy, he claimed refund of the excise duty paid on purchase of the vehicle in terms of Exemption

Notification no.66. Copy of the said notification has been enclosed as Schedule A to the writ petition. In terms of entry 226, sale of cars for physically handicapped persons are exempted from excise duty. The claim of the petitioner however was rejected on the ground that Maruti

Udhyog Limited had lodged similar claim. The claim of Maruti Udhyog Limited however was rejected vide Annex.13 on the two fold ground, namely, that the certificate in respect of the disability was issued two months after and the same was not in consonance with condition no.43 of notification no.3/2001 and secondly that the disability of petitioner is in the right lower limb whereas the disability should be in the left limb.

Having stated these basic facts, we call upon the respondents to file reply. If the respondents fail to convince the Court that their stand was bona fide and in accordance with the relevant circular of the department, we may allow the writ pettion with costs.

Put up on 11/12/2006 as prayed for. "

Having heard the learned counsel for the parties, we are now finally disposing of this matter by this judgment.

It is unfortunate that the pettioner who is physically handicapped person is required to knock the doors of this Court for getting rebate in the matter of payment of

Excise Duty at the time of purchasing motor car. The petitioner had purchased a motor car, namely, Maruti Esteem

AX manufactured by Maruti Udyog Limited claiming to be physially handicapped person suffering from Post Polio residual palsy right lower limb. The certificate dated 14.09.2001 (Annex.7) issued by the Government of India through the Dy. Secretary of the Department of Heavy

Industries reads as under:

"TO WHOM SO EVER IT MAY CONCERN

Subject:- Purchase of car Model Maruti Esteem

AX on concessional excise duty by Shri Vijay Raj

Khariwal under condition No.43 of General

Exemption No.66 of Central Government

Notification No.3/2001 Central Excise Dated 1.3.2001.

Certified that car model Maruti Esteem AX manufactured by M/s Maruti Udyog Ltd., is capable of being driven by Shri Vijay Raj

Khariwal, resident of Plot No.5, Paota "B" Road,

Jodhpur, who has the following handicap/disability as certified by Principal & Head of the Department of Orthopedic & Rehabilitation Centre, Mahatma

Gandhi Hospital, Govt. of Rajasthan, Jodhpur.

"Post Polio Residual Palsy Right Lower Limb"

Accordingly, this certificate is issued only for the purpose of availing concessional excise duty applicable under condition No.43 of General

Exemption No.66 of Central Government

Notification No.3/2001-Central Excise dated 1.3.2001."

As per the policy framed by the Department, the person who is physically handicapped is entitled to get concession in the matter of payment of excise duty at the time of purchasing the vehicle. The petitioner had purchased the

Maruti car from Maruti Udyog Limited. At that time, the

Company had charged excise duty from him. Thereafter the petitioner gave an application which is placed at page 57

(Annex.8) dated 08.10.2001 requesting the Dy. Secretary,

Central Excise, Gurgaon for refund of Rs.60,868.48 paid by him at the time of purchasing of the vehicle towards the Excise duty. The Excise duty was paid by Maruti Udyog Limited, therefore, the Company also applied for such exemption by giving application (Annexure 9) dated 29.10.2001 which is at page 58 of the paper-book. On the said application, a notice was issued by the Dy. Secretary to the Maruti Udyog Limited,

Gurgaon asking the Company to show cause within 30 days of receipt of the notice as to why the said refund claim amounting to Rs.60,868.48 should not be rejected. In the said notice, there is also reference to the fact that the party cleared the said vehicle in the normal course under S.R.P. at the appropriate rate of Central Excise duty and passed on the incidence of duty to the customer, thus, the principle of unjust enrichment is applicable in this case. The Company thereafter gave its reply dated 13.02.2001 Annex.11 and asked the petitioner also to give particulars in connection with the case.

The petitioner thereafter submitted all necessary evidence about his physical disability and his entitlement for refund of excise duty. However, the claim for refund of Excise duty was rejected by the Department by order dated 03.09.2003

(Annex.13) and the Assistant Commissioner while rejecting the claim has observed as under:

"7. Para 4 of the CBEC's above said circular specifically state that 'since auto transmission is one of the special devices required by a person with left leg disability, the Ministry of Industry has been issuing appropriate certificate in respct of auto transmission motor vehicles for extending concessional rate of duty to such handicapped persons' Para 2 of the circular also stated that 'vehicle manufacturers have represented that they are manufacturing cars with automatic transmission which are suitable for persons having left leg disability. The said car "Esteem-

AX" which was cleared by M/s MUL under SRP on payment of appropriate duty of central excise to be sold to any of the customers. The only special feature of the car is that it has automatic transmission system which makes it capable of being driven by a handicapped person with left leg disability."

The petiitoner after making some representations has ultimately approached this Court with the prayer that the

Department be directed to refund the Excise Duty as he was entitled to such exemption in view of the fact that he is physically handicapped person.

Learned counsel for the petitioner, Mr. Manoj Bhandari submitted that the fact that the pettioner is physically handicapped person is not in dispute; and the certificate issued by the Department of Industries has also been produced, which is the requirement under the notification.

Inspite of clear entitlement of the petitioner, an absurd and rigid view has been taken by the Excise Department in not giving benefit of exemption from Excise Duty to the petitioner who has purchased the car with auto-transmission that is suitable for physically handicapped person.

The learned advocate Mr. Rajesh Joshi appearing for the Excise Department on the other hand submitted that since the petitioner is physically handicapped by right leg, he does not fall in the category of physically handicapped person in connection with granting exemption from Excise Duty on purchase of the car. Mr. Joshi relied upon the circular dtd.24.06.2002 (Annex.R/1) and submitted that the person having disability in left leg is entitled to exemption. As against this, since the petitioner is physically handicapped person by right leg having no disability in left leg, is not entitled to the exemption.

We have considered the rival submissions and examined the record.

As noticed hereinbefore, the certificate (Annex.7) indisputably makes out that the petitioner is a physically handicapped person; that the vehicle in question is capable of being driven by him; and that the concerned department had issued the said certificate for the purpose of availing excise duty concession. In this connection reference may also be made to the Departmental clarification (Annex.18), Para 4 and 5 whereof read as under:

"4. Since auto-transmission is one of the special devices required by person, with left leg disability, the Ministry of Industry has been issuing appropriate Certificates in respect of auto- transmission motor vehicles for extending concessional rate of duty to such handicapped persons. The concession will obviously not be available to all automatic transmission vehicles, but only in respect of those vehicles which are bought by physically handicapped persons and who produce necessary certificate from Ministry of

Industry. 5. In view of the above, it is clarified that the concession should not be denied in respect of any motor vehicle with special features (like auto transmission) which is capable of being used by a handicapped person and for which necessary certificate from the Ministry of Industry is produced in this regard."

It is true that simply because the vehicle in question is having auto-transmission facility that by itself cannot be the ground for claiming exemption as the

Department has found that even non-handicapped person can also purchase the said car with auto-transmission and obviously, in such a case the person who is not physically handicapped is not entitled to exemption simply because he purchased the vehicle with auto-transmission facility.

Apparently, the person who is physically handicapped and purchases a vehicle having auto-transmission facility, is entitled to such exemption in view of clause 5 of the clarificatory circular.

The learned counsel for the Department has fairly conceded that it cannot be said that the petitioner is not the physically handicapped person in view of certificate issued by the Department of Industries. The Policy framed by the

Department is required to be considered in its logical way; and cannot be reduced to farce. When a person who is physically handicapped, suffering from mal-functioning or non-functioning of a limb and has purchased a vehicle suitable to him, we see no reason that he is not entitled to get exemption regarding payment of excise duty, irrespective of the fact as to whether he is phycially handicapped in a partiuclar manner or not.

Even clause 5 of the clarificatory circular makes it clear that it does not make such a distinction that the person having disablity in right leg may not be entitled to get exemption. The said Clause 5 of the clarficatory circular clearly provides that if a vehicle is purchased by a physically handicapped person for which necessary certificate issued by the Ministry of Industries is produced, he is entitled to exemption.

As pointed out earlier, it is not in dispute that the petitioner is a physically handicapped person and he has also produced the certificate to that effect. Once the policy is framed to give exemption to the physically handicapped person, it would be absolutely unjust to deny him such benefit on a pretext that he is physically handicapped only in connection with right leg and not the left one. Such type of distinction drawn by the Department is unjust, arbitrary and uncalled for; and appears nothing less than malice in law as it stands contrary to the policy framed by the Department for giving exemption to the physically handicapped persons. The stand taken by the Department in denying just claim of the peititoner in the matter of concession on payment of Excise

Duty is absolutely arbitrary. At the time of considering the exemption application, the certificate issued by the Ministry of

Industries has been totally ignored and clarfication circular of the Department has also been ignored by the concerned officer. In our view, the officer has acted in absolutely unjust and improper manner in denying the just claim of the petitioner in the matter of getting rebate on Excise Duty. The stand of the

Department is unsustainable and the writ petiiton filed by the petiitoner is required to be allowed.

For the reasons mentioned above, this writ petition is allowed. The impugned order dated 03.09.2003 (Annex.13) is quashed and set aside and we hold that the petitioner is entitled to get exemption in the matter of Excise Duty at the time of purchasing car in view of the fact that he is a physically handicapped person. The refund of Excise Duty be made to the petitioner within a period of one month from today.

Learned Counsel Mr. Rajesh Joshi appearing for the Excise

Department has assured that there shall not be any further delay in making such payment which may amount to adding insult to the injury. Though in the facts and circumstances of the case and in view of the order passed by this Court, the petitioner can legitimately claim interest on delayed payment and cost of litigation, however, learned counsel Mr. Bhandari appearing for the petitioner conceded that he is not praying for refund with interest and costs, especially in view of the assurance that the payment shall be made within a period of 30 days from today. Considering this aspect, we do not direct the Department to pay the aforesaid amount with interest and make the cost easy, if the amount is paid within the period as indicated above. However, if the payment is not made within a period of 30 days, said amount will be paid with interest @12% per annum from the date of lodging of claim of refund by the petitioner, i.e. From 08.10.2001.

(DINESH MAHESHWARI), J. (P.B.MAJMUDAR), J. /ss


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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