TaxTMI 
TaxTMI 
2019 (7) TMI 158
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....on order. 2. The petitioner has assailed the letter dated 07.11.2017 issued by the respondent No.1 inter alia seeking a direction to respondent No.1 to refund the entire amounts paid as R and D Cess by the petitioners during April 2017 to June 2017. 3. The petitioners are engaged in the business of trading of branded readymade garments and its accessories. The petitioners have entered into agreements with the technology partners who are located outside India and accordingly, the petitioners imports technology from the technology partner for which they paid royalty on sales for the license brands after the end of every quarter on receipt of invoice from the vendor. 4. The Research and Development Cess Act, 1986 ['Act'....
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....on/order of the first respondent rejecting the application of refund is ex facie erroneous, arbitrary and illegal. There being no factual disputes pertaining to refund claim of R & D Cess, the action of the respondent No.1 in rejecting the claim is unjustifiable and violative of Article 14, 19, 265 and 300A of the Constitution of India. Learned counsel in support of his contentions, placed reliance on the following judgments; 1. Hind Agro Industries Limited V/s. Commissioner of Customs 2008 [221] E.L.T. 336 [DEL.]. 2. HMM Ltd., V/s. Administrator, Bangalore City Corporation 1997 [91] E.L.T. 27 [S.C.]. 3. Joshi Technologies International V/s. Union of India 2016 [339] E.L.T. 21 [GUJ,]. 8. Learned counsel ....
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....f levy of Cess and receipt of or accepting the Cess payments to Government of India prior to repeal of Cess Act w.e.f., 01.04.2017 was as follows: Xxxxx 3. That the Technology Development Board was set up under the Technology Development Board Act, 1995 [Hereinafter TDB Act] as a statutory body under the Department of Science & Technology [respondent No.3]. Section 9 of the Act provides that there shall be constituted a fund to be called Fund for Technology Development and Application. Section 10 of the TDB Act provides for transfer of all monies collected under the R&D Cess Act, 1996 to be transferred to the Board. 4. That the Fund for Technology Development and Application could not be established till no....
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....9;ble Apex Court in the case of HMM Limited supra, has observed thus: "12. ....... Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as to the amount. There is no scope of any possible dispute on the plea of undue enrichment of the petitioners. We are, ....
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....take or through ignorance, it is always open to the assessee to bring it to the notice of the authority concerned and claim refund of the amount wrongly paid. The authority concerned is also duty bound to refund such amount as retention of such amount would be hit by Article 265 of the Constitution of India which bears the heading "Taxes not to be imposed save by authority of law" and lays down that no tax shall be levied or collected except by authority of law. Since the Education Cess and Secondary and Higher Secondary Education Cess collected from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same. The decision of the Sup....
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.... paid by mistake or through ignorance of the repealed Act deserves to be refunded on the claim of refund made by the petitioners, retention of such amount would be hit by Article 265 of the Constitution of India. 17. The respondent No.1 submits that they are not liable to refund any amount to the petitioners. The counter affidavit filed by the respondent Nos.2 to 4 quoted supra indeed clarifies that the said R & D Cess paid by the petitioners lies in the consolidated fund of India which is managed by the respondent No.4. 18. The claim of refund of the petitioners cannot be denied for the reason that there is no legal provision to refund R & D Cess paid by the petitioners. No amount can be withheld by the respondents without authority ....