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TMI Blog2003 (4) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... d the purported notice to show cause dated August 22, 2002 issued by the respondent No. 2. Subsequently, during the pendency of this writ application, the respondent No. 2 by order dated October 22, 2002 having passed order holding that the petitioners are liable to pay tax after overruling the plea of the petitioners, such order has also been challenged in this writ application pursuant to the leave granted by the division Bench. 2.. The facts giving arise to the filing of the instant writ application may be summarised thus: The petitioner No. 1 is a health care and life saving institution engaged in rendering medical treatment. The petitioner No. 1 in order of import into West Bengal one Signa Profile Tesla Magnetic Resonance Imagine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of consumption tax. The Commissioner allowed 30 days' time from the date of issue of way bill to obtain such order from this Court. 4.. In view of the aforesaid fact, petitioner No. 1 made a fresh application before the Commissioner of Commercial Taxes on July 31, 2002. A representative of the petitioners also appeared before the Commissioner of Commercial Taxes on May 12, 2002 and explained that the exemption granted by rule 5A(2)(c) of the West Bengal State Tax on Consumption or Use of Goods Rules, 2001 ("Rules") was available in respect of such MRI system as the petitioner caused the goods to be brought into the local area from outside India. 5.. The Commissioner of Commercial Taxes, further directed the petitioners to give und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to get exemption in terms of rule 5A(2)(c) of the Rules mentioned above. 8.. The petitioners have subsequently filed supplementary affidavit and have relied upon various documents for the purpose of showing that the petitioners deserve exemption under rule 5A(2)(c) of the Rules mentioned above. 9.. This application is opposed by the respondents by filing affidavit-in-opposition to the main application as well as to the supplementary affidavit. The sum and substance of the contentions of the respondents is that the instrument was purchased by petitioner No. 1 from respondent No. 6 who is a dealer in Bangalore in India and the goods, namely MRI system was imported by respondent No. 6 and not by petitioner No. 1. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any local area,- (a) by the Doordarshan Kendra, Kolkata from the Doordarshan Directorate, Doordarshan Central Purchase and Stores, New Delhi for use or consumption by it in catering education, information or entertainment to viewers; (b) by any person for establishing, installing, operating or maintaining any telecommunication, information technology or information technology enabled services in West Bengal; (c) by any person from any place outside the territory of India." 11.. Mr. Bajoria, the learned counsel appearing on behalf of the petitioners has drawn attention of this Court to the documents relating to the said transaction and has pointed out that the instrument in question was imported from a foreign country at the instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prays for dismissal of the writ application. 13.. After hearing the learned counsel for the parties and after going through the aforesaid provision of the rule, I find that the petitioner No. 1 can get the exemption mentioned above if any of the following two conditions is satisfied: (a) The petitioner No. 1 must prove that it has itself brought the goods into the local area of West Bengal from a foreign territory. or (b) It has caused the goods to be brought to West Bengal from a foreign country; in other words, the petitioner No. 1 should be the cause of importation of the goods to West Bengal. 14.. In the present case, the documents placed before this Court establish that this particular instrument has come from a foreign territory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts done by the principal in person. In spite of such well-known legal consequence, the Legislature used the additional phrase "or cause to be brought" purposely to give the relief of exemption even to a transaction not brought about either direct or through an agent, if the purchaser can show that at his instance the importation has been made through a third party. 16.. I thus find that the respondents Nos. 1 to 5 erred in refusing exemption to the petitioner No. 1 for importation of the instrument in question notwithstanding the fact that the petitioner No. 1 brought the transaction within the meaning of the phrase "caused to be brought" appearing in rule 5A(2)(c) of the Rules. 17.. I, therefore, allow this writ application. The orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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