Ajoy Nath Ray, J. - (1.) This is a writ application where the applicant Indian Oxygen Ltd., claims to be outside the purview of the Research and Development Cess Act, 1986 in regard to certain purchase of machinery from three foreign countries and in regard to importation of specialized service for supervising, advising and guiding in the matter of erection, commissioning and performance tests of those machines.
(2.) The preamble, Sub-section 2(h) and Section 3 of the aforesaid Act being Act 32 of 1986 are set out below:- "An Act to provide for the levy and collection of a cess on all payments made for the import of technology for the purposes of encouraging the commercial application of indigenously developed technology and for adapting imported technology to wider domestic application and for matters connected therewith or incidental thereto. 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, an includes designs, drawings, publications and technical personnel. 3(l). There shall be levied and collected, for the purpose of this Act, a cess at such rate not exceeding five per cent. on all payments made towards the import technology, as the Central Government, may, from time to time, specify by notification in the Official Gazette. 2) The cess shall be payable to the Central Government by an industrial concern which imports technology on or before making any payments towards such import and shall be paid by the industrial concern to any specified agency."
(3.) No Affidavit-in-opposition has been filed in this matter. Accordingly, the statements contained in paragraphs 6 and 7 of the Writ Petition are to be taken as substantially correct regarding the transaction under review. The said two paragraphs are set out below:- "6. Pursuant to and in terms of the aforesaid import licences, your petitioners imported the permissible machinery and components from inter alia, Motherwell Bridge Constructors Ltd. U.K. and Cryostar, Switzerland and Mannesman Demag, West Germany. 7. In order to obtain valid performance guarantees of the said machinery and components from these foreign sellers, it was essential that the services of specialist Engineers deputed by the foreign sellers should be available for rendering necessary supervision, advice and guidance during the erection, commissioning and performance tests of the machinery and components sold by the foreign sellers.";