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Showing contexts for: collaboration agreement in Wig Brothers (Builders And Engineers) ... vs Union Of India (Uoi) And Ors. on 11 July, 2003Matching Fragments
7. In para 9 of the petition, it is alleged that the petitioner company together with E. Heit-Kampt of Germany and Balcke-Durr, Germany, in response to the said tender invitation submitted a bid dated 16.6.1988 to the NTPC for the said project. In para 10, it is stated that the NTPC after evaluation accepted the petitioners' bid and awarded the contract for the project, namely, supply of equipment, construction and commissioning of 4 cooling towers on turn-key basis for the Thermal Power Project at Dadri to the petitioner with Heit-Kampt and Balcke-Durr as collaborators for the said purpose, and the NTPC issued a letter of intent dated 8.11.1988 to the petitioner company, Annexure 2. Pursuant to the same, the NTPC entered into an agreement dated 11.1.1990 with the petitioner vide Annexure-3. In para 11 of the petition, it is alleged that cooling towers are essentially civil works as they are tailor-made, designed and engineered according to the needs of the specific power plant, and the same design or technology cannot be used for another cooling tower. The petitioners entered into an agreement with Heit Kampt dated 28.11.1988 for providing the required design and engineering, documentation, expertise and supervision services as required by NTPC. The collaboration agreement is only for the said project and does not stipulate transfer of any on-going technical know-how to the petitioner company which would enable it to acquire the ability to design and engineer cooling towers. Under the collaboration agreement, there was no provision of the related services which are usually the subject matter of technical know-how agreements. True copy of the collaboration agreement is Annexure 4.
12. It is alleged in para 27 that no cess is payable under the Cess Act, because the contract is a deemed export contract and does not fall within the purview of the Cess Act. However, the petitioner received notice dated 22.7.1991 under Rule 6 of the rules for payment of cess vide Annexure 16. Hence this petition.
13. Counter affidavit has been filed and we have perused the same. In para 6, it is stated that the petitioner company is an industrial concern within the meaning of Section 2(e) of the Cess Act read with Section 2(c) of the IDBI Act. It is alleged that the petitioner company entered into a collaboration agreement dated 22.11.1988 with Heit-Kampt--a foreign company of Germany for import of technology from outside India, and the said agreement has been approved by the Central Government. It is alleged that the petitioner company has imported technology under the said collaboration agreement, and hence is liable to pay the cess.
16. In para 11 of the counter affidavit, it is stated that the petitioner company alone imported the technology. The recital in the collaboration agreement dated 22.11.1988 makes it clear that the petitioner company desired to make use of the special know-how and the technical services and assistance of Heit-Kampt.
17. In para 13 of the counter affidavit, it is alleged that the collaborators came into contract with NTPC at the instance of the petitioners in discharge of their obligations towards the petitioner company under the collaboration agreement dated 22.11.1988. There was no transfer of technology by the collaborators directly to the NTPC. The technology in question was imported by the petitioner from the collaborator as per terms of the collaboration agreement, and not by the NTPC. It was the petitioner company, and not the NTPC, which required the necessary technology for executing the contract awarded by NTPC to the petitioner company, and not to Heit-Kampt or Bal-cke Durr.
22. We are of the clear opinion that petitioner is an industrial concern as defined in Section 2(e) of the Act since a foreign collaboration agreement involving import of technology has been approved in its favour by the Central Government, as is evident from para 6 of the counter affidavit. We are further of the opinion that the petitioner has imported technology.
23. No doubt, the stand of the petitioner is that it was the NTPC which imported the technology ; but we cannot accept this submission. A perusal of the contract dated 11.1.1990, Annexure 3 to the petition, shows that it was executed by the petitioner alone, and not jointly with Heit Kampt. A perusal of the said agreement shows that the contract was awarded by NTPC in favour of the petitioner and not jointly in favour of the petitioner along with its German collaborators. We, therefore, fully agree with what is stated in paras 8 and 11 of the counter affidavit. The collaboration agreement dated 22.11.1988, Annexure 4 to the petition, shows that the petitioner has imported technology from the German collaborators. It was the petitioner company and not the NTPC which required the necessary technology for executing the contract. The technology was not available in India and hence, was imported from Germany by the petitioner.