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Steel Authority of India Limited, Salem Steel Plant, Represented by its V. Nandagopal, Dy. General Manager (F&A) v/s The Secretary to the Govt. of India, Ministry of Science & Technology, New Delhi & Others

Company & Directors' Information:- STEEL AUTHORITY OF INDIA LIMITED [Active] CIN = L27109DL1973GOI006454

Company & Directors' Information:- S A L STEEL LIMITED [Active] CIN = L29199GJ2003PLC043148

Company & Directors' Information:- M M S STEEL PRIVATE LIMITED [Active] CIN = U27109TZ1996PTC006849

Company & Directors' Information:- G. O. STEEL PRIVATE LIMITED [Active] CIN = U27100PB2007PTC031033

Company & Directors' Information:- J M G STEEL PRIVATE LIMITED [Strike Off] CIN = U27105BR1992PTC004985

Company & Directors' Information:- S C I INDIA LIMITED [Active] CIN = U24110BR1984PLC001994

Company & Directors' Information:- H L STEEL PVT LTD [Active] CIN = U27107AS1992PTC003726

Company & Directors' Information:- K V M STEEL PRIVATE LIMITED [Active] CIN = U29141DL1988PTC031248

Company & Directors' Information:- K STEEL PRIVATE LIMITED [Strike Off] CIN = U27104JH1973PTC000998

Company & Directors' Information:- R. J. STEEL PRIVATE LIMITED [Active] CIN = U28112MH2009PTC193047

Company & Directors' Information:- M M STEEL PRIVATE LIMITED [Active] CIN = U27107MH2001PTC131270

Company & Directors' Information:- B L STEEL PVT LTD [Active] CIN = U51909WB1981PTC034021

Company & Directors' Information:- R K G STEEL PRIVATE LIMITED [Active] CIN = U27109DL2004PTC128852

Company & Directors' Information:- V B STEEL PRIVATE LIMITED [Active] CIN = U28112MH2010PTC211691

Company & Directors' Information:- I B STEEL COMPANY PRIVATE LIMITED [Strike Off] CIN = U28910MH2010PTC211344

Company & Directors' Information:- J S C STEEL PRIVATE LIMITED [Active] CIN = U27106UP2013PTC061568

Company & Directors' Information:- S. M. STEEL PRIVATE LIMITED [Active] CIN = U51101MH2013PTC239811

Company & Directors' Information:- R K P STEEL LTD [Active] CIN = L27109WB1980PLC033206

Company & Directors' Information:- C P STEEL PRIVATE LIMITED [Active] CIN = U27100WB2008PTC127447

Company & Directors' Information:- A. K. J. STEEL PRIVATE LIMITED [Active] CIN = U28112WB2010PTC144880

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- C D STEEL PVT LTD [Under Liquidation] CIN = U27109WB1981PTC034340

Company & Directors' Information:- T M S STEEL PRIVATE LIMITED [Strike Off] CIN = U02710TZ1996PTC007498

Company & Directors' Information:- DELHI STEEL CORPORATION LIMITED [Strike Off] CIN = U27310DL1956PLC002613

Company & Directors' Information:- P M R STEEL PRIVATE LIMITED [Active] CIN = U51102DL2003PTC122675

Company & Directors' Information:- C T STEEL PVT LTD [Active] CIN = U27109WB2005PTC106634

Company & Directors' Information:- P G STEEL PVT LTD [Strike Off] CIN = U24111AS1998PTC005409

Company & Directors' Information:- A AND S STEEL PRIVATE LIMITED [Active] CIN = U63090DL1987PTC027835

Company & Directors' Information:- J S STEEL PRIVATE LIMITED [Active] CIN = U52190CT1978PTC001432

Company & Directors' Information:- U M STEEL PRIVATE LIMITED [Strike Off] CIN = U27209TN1986PTC013670

Company & Directors' Information:- L N STEEL PRIVATE LIMITED [Active] CIN = U27310WB2007PTC118206

Company & Directors' Information:- K. D. W. STEEL PRIVATE LIMITED [Active] CIN = U28910UP2011PTC043976

Company & Directors' Information:- STEEL PLANT PRIVATE LIMITED [Active] CIN = U74210MH1959PTC011311

Company & Directors' Information:- R. N. STEEL PRIVATE LIMITED [Active] CIN = U27100WB2007PTC116588

Company & Directors' Information:- P M STEEL PRIVATE LIMITED [Active] CIN = U27105MP1982PTC001915

Company & Directors' Information:- M R STEEL (INDIA) PRIVATE LIMITED [Active] CIN = U27100TG2013PTC088808

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- C K STEEL PVT LTD [Active] CIN = U29150WB1975PTC030259

Company & Directors' Information:- K STEEL & COMPANY PVT LTD [Strike Off] CIN = U51909WB1991PTC053960

Company & Directors' Information:- N S STEEL PVT LTD [Strike Off] CIN = U27106PB1980PTC004266

Company & Directors' Information:- R C STEEL PVT LTD [Strike Off] CIN = U28112AS1980PTC001811

Company & Directors' Information:- P D STEEL PRIVATE LIMITED [Strike Off] CIN = U74899DL1989PTC038426

Company & Directors' Information:- A K STEEL PVT LTD [Strike Off] CIN = U99999DL1961PTC003566

Company & Directors' Information:- H S P STEEL PRIVATE LIMITED [Strike Off] CIN = U27100MH2013PTC242983

Company & Directors' Information:- D H STEEL PRIVATE LIMITED [Strike Off] CIN = U27109RJ2012PTC039742

Company & Directors' Information:- R A STEEL PRIVATE LIMITED [Active] CIN = U51909MH2014PTC253625

Company & Directors' Information:- N. V. STEEL PRIVATE LIMITED [Strike Off] CIN = U27310DL2009PTC186541

Company & Directors' Information:- K. D. STEEL PRIVATE LIMITED [Strike Off] CIN = U28939DL2012PTC244467

Company & Directors' Information:- STEEL INDIA PRIVATE LIMITED [Strike Off] CIN = U00349KA1958PTC001309

    W.P. No. 39433 of 2002

    Decided On, 27 June 2018

    At, High Court of Judicature at Madras


    For the Petitioner: R. Venkata Narayanan for M/s. Subbaraya Aiyar Padmanabhan, Advocate. For the Respondents: R1 & R2, J. Madana Gopal Rao, SCGSC., R3 & R4, Served. No Appearance.

Judgment Text

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus to call for the records of the First Respondent in F.No.16/9/93-NRI and quash the impugned order dated 02.07.2002 and consequently direct the First Respondent to grant refund of Cess amount to the Petitioner.)

1. Heard Mr.R. Venkata Narayanan, learned counsel for the Petitioner and Mr.J. Madana Gopal Rao, learned Central Government Standing Counsel for the Respondents.

2. The Petitioner had imported certain machineries for which cess was levied by the Government of India at the rate of 5% of the value of the knowledge imported in any form under the provisions of the Research and Development Cess Act, 1986.

3. According to the Petitioner, the machineries imported were sale simpliciter and do not involve any technology, but the Petitioner had paid cess of 5% which ought not to have been collected and hence refund of the same has been sought in this Writ Petition.

4. The definition of 'technology' in the Research and Development Cess Act, 1986, is extracted below:-

'2(h) 'technology' means any special or technical knowledge or any special service required for any purpose whatsoever by an industrial concern under any foreign collaboration, and includes designs, drawings, publications and technical personnel.'

5. Learned counsel appearing for the Petitioner relying on judgment of the Calcutta High Court in Indian Oxygen and Another vs Union of India [(92) Calcutta Weekly Notes 761] contends that the petitioner being a similarly placed person, was entitled to the refund of cess paid for import of machineries as ordered in that case. Suffice here to refer paras 8 and 9 of that judgment which are extracted below:-

'8. To my mind, the definition of technology clearly demonstrates that the foreign collaboration itself must be distinct from the knowledge imported or the special service imported. The definition clarifies that the importation of knowledge or service is under the foreign collaboration, and as such, the foreign collaboration itself would be distinct from, and wider than, the isolated instances of importation of knowledge or service. It is conceivable that there might be a foreign collaboration which involves only importation of technical knowledge or special service and that such importations are made from time to time, or from place to place upon a span sufficiently wides so as to cover the meaning of the phrase 'foreign collaboration'. In the instant case, however, there is no such width or importation and it is only in regard to purchase of certain machinery that supervising personnel were sought to be brought from the foreign sellers.

9. An agreement for sale cannot be a foreign collaboration within the meaning of Section 2(h) of the said Act. A seller does not work along with or together with the purchaser. There is no element of partnership or joint venture involved in a contract for sale, which has always been clearly distinguished from a contract in the nature of a partnership or a joint venture. The contract for purchase of the machinery from the selling concerns in the United Kingdom, Switzerland and West Germany cannot in any view of the matter be termed as a foreign collaboration, or three foreign collaborations with Indian Oxygen Ltd.

6. Learned counsel for the Petitioner further submitted that this Court by an order dated 07.08.2001 in the earlier Writ Petition W.P.No.5276 of 1995 filed by the Petitioner had directed the First Respondent to consider the representation of the Petitioner for refund of cess and pass orders and the said representation submitted by the Petitioner in pursuance thereof was rejected by the First Respondent by Proceedings dated 02.07.2002, which reads as follows:

'3. Pursuant to the directions given by the Hon'ble Madras High Court, this Department has considered the representations dated 19.10.1993 and 28.04.1994 submitted by you, Steel Authority of India Limited (the Petitioner), as cited in the above mentioned order. In the light of the provisions of the Research and Development Cess Act, 1986 and the Research and Development Cess Rules 1987, and all the facts and circumstances brought out by the Petitioner in the representation, it is regretted that the request of the Petitioner, Steel Authority of India Limited, for the refund of the Cess remittances of Rs.44.93 lakhs made on various dates between 31.03.1989 and March 1993 cannot be acceded to by the Department.

7. On a perusal of the aforesaid order, which is impugned in this Writ Petition, it is evident that the First Respondent has not given any reason for coming to the conclusion that the import of machineries by the Petitioner involved 'technology' within the meaning of Section 2(h) of the Research and Development Cess Act, 1986. It is needless here to recapitulate the settled legal position reiterated by the Constitution Bench of the Hon'ble Supreme Court in S.N. Mukherjee vs Union of India (AIR 1990 SC 1984) that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision. More so, in this case, when the Petitioner has cited that a similarly placed person had been given relief by a High Court, it was incumbent upon the concerned authority to have considered the same and given a specific finding as to whether the Petitioner is entitled to the same benefit.

8. In the aforesaid circumstances the impugned order dated 02.07.2002 passe

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d by the First Respondent, which cannot be sustained, is quashed and the matter is remitted to the First Respondent for fresh determination and to pass reasoned orders on merits in accordance with law after affording an opportunity of personal hearing to the Petitioner and communicate the decision to the Petitioner and file report of such compliance before the Registrar (Judicial) of this Court on or before 30.09.2018. It is made clear that no view has been expressed by this Court on the correctness or entitlement of the claim made by the Petitioner. 9. The Writ Petition is disposed of on the aforesaid terms. No costs.