THE SECRETARY, MINISTRY OF COMMERCE & ORS.versusM/S VINOD AND COMPANY

560                     [2019] REPORTS
               SUPREME COURT    10 S.C.R. 560             [2019] 10 S.C.R.


A         THE SECRETARY, MINISTRY OF COMMERCE & ORS.
                                        v.
                        M/S VINOD AND COMPANY
                         (Civil Appeal No.5399 of 2019)
B                                JULY 11, 2019
              [DR. DHANANJAYA Y CHANDRACHUD AND
                         M.R. SHAH, JJ.]
             Consumer Protection Act, 1986 – s. 2(d), 2(g) and 2(o) –
      Respondent applied for the grant of an REP licence for which it
C
      was entitled to a premium on the amount of exports under the scheme
      – Scheme for the issuance of REP licence was discontinued –
      Consequently, the premium was not paid to the respondent –
      Additional Chief Controller of imports and exports passed an order
      holding in abeyance the grant of premium – Respondent filed a
D     claim before the District Consumer Disputes Redressal Forum – The
      District forum allowed the claim of the respondent – Appeal before
      the State Commissioner was rejected – This was confirmed in revision
      by the National Consumer Disputes Redressal Commission (NCDRC)
      – On appeal, held: The Exim policy is an incident of the fiscal policy
      of the State and of its overall control over foreign trade – As an
E
      incident of its policy, the State may provide a regime of incentives –
      The provision of those incentives does not render the State a service
      provider or the person who avails of the incentives as a potential
      user of any service – Thus, there was absence of jurisdiction in the
      District forum to entertain a complaint under the Act in regard to a
F     claim arising out of and founded on an REP licence governed by
      the Exim policy – Accordingly, judgment of the NCDRC set aside.
             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
G     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. Additional Chief
      Controller of imports and exports passed an order holding in
      abeyance the grant of premium. Thereafter, respondent filed a
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                                       560
        SECRETARY, MINISTRY OF COMMERCE & ORS. v.                         561
                   M/S VINOD AND CO.

claim before the District Consumer Disputes Redressal Forum.              A
The District forum allowed the claim and directed payment of
Rs. 1,23,223 to the respondent. The appeal before the State
Consumer Disputes Redressal Commission was rejected. This
was confirmed in revision by the National Consumer Disputes
Redressal Commission. Hence, the present appeals.
                                                                          B
      Allowing the appeal, the Court
      HELD: 1. The objects of the Exim policy are essentially to
stimulate industrial growth by providing easy access to imported
capital goods, raw materials and components, to substitute
imports and promote self-reliance and to provide an impetus to            C
exports by improving the quality of incentives. The Exim policy
is an incident of the fiscal policy of the State and of its overall
control over foreign trade. As an incident of its policy, the State
may provide a regime of incentives. The provision of those
incentives does not render the State a service provider or the
person who avails of the incentives as a potential user of any            D
service. The State, in exercise of its authority to utilise and collect
revenue, puts in place diverse regulatory regimes under the law.
The regime may provide for modalities for compliance, penalties
for breach and incentives to achieve the purpose of the policy.
The grant of these incentives does not constitute the State as a          E
service provider. [Para 16] [567-C-E]
      2. In Bihar School Examination Board v. Suresh Prasad
Sinha it was held that the Board is not a service provider and a
student who takes an examination is not a consumer. By analogy,
the same principle must govern the present case. For the above            F
reasons, this Court comes to the conclusion that there was an
absence of jurisdiction in the District Forum to entertain a
complaint under the Act in regard to a claim arising out of and
founded on an REP licence governed by the Exim policy.
[Paras 19, 20] [568-F-H]
                                                                          G
      Vikram Sales Corporation & Anr v. Commissioner of
      Commercial Taxes (1996) 4 SCC 433 : [1996] 2 Suppl.
      SCR 204 ; Bihar School Examination Board v.
      Suresh Prasad Sinha (2009) 8 SCC 483 – relied on.

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562                SUPREME COURT REPORTS                    [2019] 10 S.C.R.


A                              Case Law Reference
               [1996] 2 Suppl. SCR 204        relied on          Para 8
               (2009) 8 SCC 483                relied on         Para 8
            CIVIL APPELLATE JURISDICTION : Civil Appeal No.5399
B     of 2019
             From the Judgment and Order dated 04.04.2012 of the National
      Consumer Disputes Redressal Commission, New Delhi in Revision
      Petition No. 375 of 2007
           D. L. Chidanand, Nachiketa Joshi, Sayooj Mohandas M.,
C     Ms. Anil Katiyar, B. Krishna Prasad, Advs. for the Appellants.
               Shivendra Dwivedi, Rajesh Mahale, Advs. for the Respondent.
               The Judgment of the Court was delivered by
               DR DHANANJAYA Y CHANDRACHUD, J.
D              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
E     import and export policy1 - 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, 19862. 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.
F
             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
G     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
      1
          Exim policy
H     2
          “Act”
          SECRETARY, MINISTRY OF COMMERCE & ORS. v.                           563
    M/S VINOD AND CO. [DR. DHANANJAYA Y CHANDRACHUD, J.]

which was further extended to 31 March 1993. The respondent filed an          A
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       B
Consumer Disputes Redressal Forum3 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           C
Forum. Their appeal before the State Consumer Disputes Redressal
Commission4 was rejected on 9 October 2006. This was confirmed in
revision by the National Consumer Disputes Redressal Commission5 on
4 April 2012.
       7. The principal issue that was canvassed before the SCDRC             D
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:     E
    (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        F
         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        G
decisions of this Court in Vikram Sales Corporation & Anr vs

3
 “District Forum”
4
  “SCDRC”
5“NCDRC”
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564            SUPREME COURT REPORTS                        [2019] 10 S.C.R.


A     Commissioner of Commercial Taxes 6 and Bihar School
      Examination Board vs Suresh Prasad Sinha7.
             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
B     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
C     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)”consumer” means any person who—

D           (i) buys any goods for a consideration which has been paid or
            promised or partly paid and partly promised, or under any system
            of deferred payment and includes any user of such goods other
            than the person who buys such goods for consideration paid or
            promised or partly paid or partly promised, or under any system
            of deferred payment when such use is made with the approval of
E           such person, but does not include a person who obtains such goods
            for resale or for any commercial purpose; or
            (ii) hires or avails of any services for a consideration which has
            been paid or promised or partly paid and partly promised, or under
            any system of deferred payment and includes any beneficiary of
F           such services other than the person who ‘hires or avails of the
            services for consideration paid or promised, or partly paid and
            partly promised, or under any system of deferred payment, when
            such services are availed of with the approval of the first men-
            tioned person but does not include a person who avails of such
            services for any commercial purposes;
G
            Explanation.— For the purposes of this clause, “commercial
            purpose” does not include use by a person of goods bought and


      6(1996) 4 SCC 433
H     7(2009) 8 SCC 483
       SECRETARY, MINISTRY OF COMMERCE & ORS. v.                                565
 M/S VINOD AND CO. [DR. DHANANJAYA Y CHANDRACHUD, J.]

      used by him and services availed by him exclusively for the               A
      purposes of earning his livelihood by means of self-employment;”
      Section 2(e) defines the expression “consumer dispute” :
      “(e)”consumer dispute” means a dispute where the person against
      whom a complaint has been made, denies or disputes the allegations
      contained in the complaint.”                                              B

      The expression “defect” is defined in Section 2(f) :
      “(f) “defect” means any fault, imperfection or shortcoming in the
      quality, quantity, potency, purity or standard which is required to
      be maintained by or under any law for the time being in force             C
      under any contract, express or implied or as is claimed by the
      trader in any manner whatsoever in relation to any goods;”
      The expression “deficiency” is defined in Section 2(g) :
      “(g)”deficiency” means any fault, imperfection, shortcoming or
      inadequacy in the quality, nature and manner of performance which         D
      is required to be maintained by or under any law for the time
      being in force or has been undertaken to be performed by a person
      in pursuance of a contract or otherwise in relation to any service;”
      Finally, it would be necessary to refer to the expression “service”
which is defined in Section 2(o):-                                              E
      “(o)”service” means service of any description which is made
      available to potential users and includes, but not limited to, the
      provision of facilities in connection with banking, financing
      insurance, transport, processing, supply of electrical or other energy,
      board or lodging or both, housing construction, entertainment,            F
      amusement or the purveying of news or other information, but
      does not include the rendering of any service free of charge or
      under a contract of personal service;”
       Under Section 2(d)(ii), a consumer is a person who hires or avails
of any service for a consideration. It includes a beneficiary of a service      G
other than the person who hires or avails of the service. The consideration
for the hire or for availment of the service may be either paid or promised
or partly paid and partly promised or under any system of deferred


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566            SUPREME COURT REPORTS                         [2019] 10 S.C.R.


A     payment. The exclusion applies to a person who avails of a service for a
      commercial purpose in which event such a person is not a consumer.
             Section 2(g) which defines the expression “deficiency”, adverts
      to a fault, imperfection, shortcoming or inadequacy in the quality, nature
      or manner of performance which is required to be maintained by or
B     under any law or which is contractually assumed to be performed by a
      person in pursuance of a contract or otherwise in relation to any service.
             Section 2(o) has defined the expression “service” to mean a
      service of any description. The issue essentially is whether in formulating
      the Exim policy and in providing a regulatory regime, the government
C     performs a service of any description.
            Since in the present case the relevant Exim policy is for the period
      from April 1988 to March 1991, it would be instructive to extract the
      purpose and object of the policy as contained in the foreword to the
      document;
D           “The Import and Export Policy plays a crucial role in the economy
            as a whole and in particular the industrial and export sectors.
            The main objectives of the new Policy are -
            (i) to stimulate industrial growth by providing easy access to
            essential imported capital goods, raw materials and components
            to industry and to sustain the movement towards modernisation,
E
            technological upgradation and make the industry progressively
            competitive internationally.
            (ii) to promote efficient import substitution and self-reliance;
            (iii) to give a fresh impetus to export promotion by improving the
F           quality of incentives and their administration; and
            (iv) to simplify and ratioinalise Police and Procedures.
            These objectives are sought to be achieved keeping in view the
            constraints of both domestic and external resources.”
            Chapter XIX provided for the Duty Exemption Scheme under
G     which paragraph 239 provided for a special REP facility in the following
      terms:-
            “Special REP Facility
            239. (1) The licence holder under this scheme would be eligible to
            an REP licence after he has fulfilled the export obligation and the
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       SECRETARY, MINISTRY OF COMMERCE & ORS. v.                              567
 M/S VINOD AND CO. [DR. DHANANJAYA Y CHANDRACHUD, J.]

      DEEC has been discharged. The value of the REP licence would            A
      be equal to 10 per cent of the value addition achieved (f.o.b. value
      of exports minus c.i.f. value of imports). The value of the REP
      licence so calculated would be further limited to the REP
      entitlement on the total f.o.b. value of exports, as per Appendix
      17 or as per para 166(2) (For Residual Products) of this policy, as
                                                                              B
      the case may be. The REP licence so issued will be valid for the
      import of the items as allowed against the relevant export product
      in Appendix 17 or para 166(2) of this Policy, at the time of issue of
      the licence.”
       The objects of the policy are essentially to stimulate industrial
growth by providing easy access to imported capital goods, raw materials      C
and components, to substitute imports and promote self-reliance and to
provide an impetus to exports by improving the quality of incentives.
The Exim policy is an incident of the fiscal policy of the State and of its
overall control over foreign trade. As an incident of its policy, the State
may provide a regime of incentives. The provision of those incentives         D
does not render the State a service provider or the person who avails of
the incentives as a potential user of any service. The State, in exercise
of its authority to utilise and collect revenue, puts in place diverse
regulatory regimes under the law. The regime may provide for modalities
for compliance, penalties for breach and incentives to achieve the purpose
of the policy. The grant of these incentives does not constitute the State    E
as a service provider.
       Before a three judge Bench of this Court in Vikas Sales
Corporation (supra), the issue for consideration was whether the
transfer of an REP licence or Exim scrip to another constitutes a sale of
goods within the meaning of state sales tax legislation. Explaining the       F
objectives of the import policy, the Court held:
      “4. …..The objective behind the licences was to provide to the
      registered exporters the facility of importing the essential inputs
      required for the manufacture of the products exported. The
      essential idea was to encourage exports and for that purpose import     G
      licences called REP Licences were issued equal to the prescribed
      percentage of the value of exports. These licences were made
      freely transferable. It was provided that the transfer such licences
      did not require any endorsement or permission from the licencing
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568            SUPREME COURT REPORTS                          [2019] 10 S.C.R.


A           authority. It was clarified that such would be: “governed by the
            ordinary law”. It only required a letter from the transferor recording
            and evidencing the transfer. On that basis, the transferee; became
            the due and lawful holder of the licence and could either import
            the goods permitted thereunder or sell it to another in turn.”
B            In Bihar School Examination Board (supra) which was decided
      by a Bench of two judges, the issue was whether the Board of
      Examinations governed by state law is amenable to the jurisdiction of
      the District Forum under the Consumer Protection Act, 1986. Answering
      the question in the negative, this Court held:
C           “12. When the Examination Board conducts an examination in
            discharge of its statutory function, it does not offer its “services”
            to any candidate. Nor does a student who participates in the
            examination conducted by the Board, hire or avail of any service
            from the Board for a consideration. On the other hand, a candidate
            who participates in the examination conducted by the Board, is a
D           person who has undergone a course of study and who requests
            the Board to test him as to whether he has imbibed sufficient
            knowledge to be fit to be declared as having successfully
            completed the said course of education; and if so, determine his
            position or rank or competence vis-a-vis other examinees. The
E           process is not, therefore, availment of a service by a student, but
            participation in a general examination conducted by the Board to
            ascertain whether he is eligible and fit to be considered as having
            successfully completed the secondary education course. The
            examination fee paid by the student is not the consideration for
            availment of any service, but the charge paid for the privilege of
F           participation in the examination.”
            In the circumstances, it was held that the Board is not a service
      provider and a student who takes an examination is not a consumer.
            We are of the view that by analogy, the same principle must govern
G     the present case for the reasons that we have indicated.
             For the above reasons, we allow the appeal having come to the
      conclusion that there was an absence of jurisdiction in the District Forum
      to entertain a complaint under the Act in regard to a claim arising out of
      and founded on an REP licence governed by the Exim policy.
H
       SECRETARY, MINISTRY OF COMMERCE & ORS. v.                              569
 M/S VINOD AND CO. [DR. DHANANJAYA Y CHANDRACHUD, J.]

       The judgment of the NCDRC dated 4 April 2012 is accordingly            A
set aside. However, there shall be no order as to costs.
      Pending application(s), if any, shall stand disposed of.


Ankit Gyan                                                  Appeal allowed.
                                                                              B




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