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2019 Supreme(SC) 864
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, M.R. SHAH, JJ.
The Secretary, Ministry of Commerce & Ors. – Appellant
Versus
M/s. Vinod and Company – Respondent
Civil Appeal No(s). 5399 of 2019 (@ SLP(C) No. 30529 of 2013)
Decided on : 11-07-2019
For the Petitioner:D.L. Chidanand, Nachiketa Joshi, Sayooj Mohandas M., Anil Katiyar, B. Krishna Prasad, Advocates
For the Respondent:Shivendra Dwivedi, Rajesh Mahale, Advocates
IMPORTANT POINT
Consumer fora do not have jurisdiction to entertain a complaint in regard to a claim arising out of and founded on an REP licence governed by the Exim policy.
Headnote:
Consumer Protection Act, 1986 - Section 2(1)(d), (g) and (o) r/w REP scheme under Exim Policy, April 1988 to March 1991 - Consumer - Exim policy framed for promoting and encouraging export - REP is an incentive, nor service - Provision of REP scheme does not render the State a service provider - Held, Consumer fora do not have jurisdiction to entertain a complaint in regard to a claim arising out of and founded on an REP licence governed by the Exim policy. (Para 19, 23, 24)
Facts of the case:
This appeal raises an interesting issue as to whether a person who has made a claim under an REP licence issued in terms of the import and export policy[Exim policy]-in this case, the policy for April 1988 to March 1991 - is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. Allied to this issue is whether in providing benefits under the terms of the Exim policy, the government renders a ‘service’ so as to make it amenable to the jurisdiction of the consumer fora established under the Act.
The respondent carried out exports from 1988 to 1993. It applied for grant of an REP licence in the f.o.b. value of Rs 6,16,116 for which it was entitled to a premium of 20 per cent on the amount of exports under the scheme. Since the scheme for the issuance of REP licence was discontinued, the premium of Rs 1,23,223 was not paid. The respondent received an intimation that the Additional Chief Controller of Imports and Exports had passed an order on 3 September 1991 holding in abeyance the grant of premium from February 1988 to August 1992 which was further extended to 31 March 1993. The respondent filed an appeal before the Appellate Committee of the Ministry of Commerce. The respondent made unsuccessful attempts for the release of the premium and was informed that the scheme had been closed as a result of which the claim could not be entertained.
The respondent then instituted proceedings before the District Consumer Disputes Redressal Forum. The District Forum allowed the claim by directing that an amount of Rs 1,23,223 be paid over to the respondent together with compensation for mental agony and towards legal expenses.
The appellants were set down ex-parte before the District Forum. Their appeal before the State Consumer Disputes Redressal Commission was rejected. This was confirmed in revision by the National Consumer Disputes Redressal Commission.
Finding of the Court:
Consumer Fora do not have jurisdiction to entertain a complaint in regard to a claim arising out of and founded on an REP licence governed by the Exim policy.
Result: Appeal allowed.
JUDGMENT
Dr. Dhananjaya Y. Chandrachud, J.
1. Delay condoned.
2. Leave granted.
3. This appeal raises an interesting issue as to whether a person who has made a claim under an REP licence issued in terms of the import and export policy[Exim policy]-in this case, the policy for April 1988 to March 1991 - is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986[“Act”]. Allied to this issue is whether in providing benefits under the terms of the Exim policy, the government renders a ‘service’ so as to make it amenable to the jurisdiction of the consumer fora established under the Act.
4. The facts, insofar as they are material, are that the respondent carried out exports from 1988 to 1993. The respondent applied for the grant of an REP licence in the f.o.b. value of Rs 6,16,116 for which it was entitled to a premium of 20 per cent on the amount of exports under the scheme. Since the scheme for the issuance of REP licence was discontinued, the premium of Rs 1,23,223 was not paid. The respondent received an intimation that the Additional Chief Controller of Imports and Exports had passed an order on 3 September 1991 holding in abeyance the grant of premium from February 1988 to August 1992 which was further extended to 31 March 1993. The respondent filed an appeal before the Appellate Committee of the Ministry of Commerce. The respondent made unsuccessful attempts for the release of the premium and was informed that the scheme had been closed as a result of which the claim could not be entertained.
5. This led to the institution of proceedings before the District Consumer Disputes Redressal Forum [“District Forum”] at Delhi. The District Forum allowed the claim by directing that an amount of Rs 1,23,223 be paid over to the respondent together with compensation for mental agony and towards legal expenses.
6. The appellants were set down ex-parte before the District Forum. Their appeal before the State Consumer Disputes Redressal Commission [“SCDRC”] was rejected on 9 October 2006. This was confirmed in revision by the National Consumer Disputes Redressal Commission, [“NCDRC”] on 4 April 2012.
7. The principal issue that was canvassed before the SCDRC and in revision was that the consumer fora had no jurisdiction to entertain a consumer complaint on the ground that no service is rendered by the Union government when it provides incentives under the Exim policy.
8. Mr. D L Chidanand, learned counsel appearing on behalf of the appellant assailed the decision of the fora on the following grounds:
(i) The Exim policy is formulated in pursuance of and as an incident of the fiscal policy of the Union government and its regulatory control over foreign trade;
(ii) The purpose and object of the Exim policy is to encourage exports and to regulate imports by laying down regulatory measures in pursuance of which a scheme of incentives is also made available to exporters;
(iii) The benefits which are granted to an exporter do not constitute a service within the meaning of the Act.
9. In support of the submission, reliance has been placed on the decisions of this Court in Vikram Sales Corporation & Anr vs Commissioner of Commercial Taxes, (1996) 4 SCC 433 and Bihar School Examination Board vs Suresh Prasad Sinha, (2009) 8 SCC 483.
10. On the other hand, Mr. Shivendra Dwivedi, learned counsel appearing on behalf of the respondent supported the decision of the consumer fora leading to the judgment of the NCDRC on the ground that as an exporter, the respondent was entitled to a premium against the REP licences which constituted a benefit provided and hence is a part of the services rendered by the Union government to an exporter.
11. In order to appreciate the rival submissions, it would be necessary to advert to some of the definitions which are contained in Section 2 of the Act. The expression “complainant” is defined in Section 2(b)(i) to mean inter alia a ‘consumer’.
12. Section 2(d) defines the expression “consumer” thus:
“(d) “co
