Custom, Excise & Service Tax Tribunal
Mohak Hi Tech Speciality Hospital vs Indore on 23 May, 2023
Author: Dilip Gupta
Bench: Dilip Gupta
1 ST/51057/18
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. I
SERVICE TAX APPEAL No. 51057 OF 2018
(Arising out of Order-in-Original No.02/COMMR/ST/IND/2018 dated 12.02.2018
passed by the Commissioner of Central Goods and Service Tax & Central
Excise, Indore)
M/s Mohak Hi-Tech Speciality Hospital ........Appellant
10/2/2 & 11/1/2, SAIMS Campus, Bhawarsala
Indore-Ujjain State Highway
MR-10, Indore (MP) - 452 002
Versus
Commissioner of Central Goods & ......Respondent
Service Tax and Central Excise Manik Bagh Palace, Post Box No. 10 Indore (MP) - 452 001 APPEARANCE:
Shri Shashwat Arya, Advocate, for the Appellant Shri Sanjay Kumar Singh, Authorised Representative of the Respondent CORAM : HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) FINAL ORDER NO. 50758/2023 Date of Hearing/Decision: May 23, 2023 JUSTICE DILIP GUPTA :
The issue involved in this appeal is whether bariatric surgery, which the appellant performs, would be cosmetic surgery
2 ST/51057/18 or plastic surgery so as to be taxable under section 65(105)(zzzzk) of the Finance Act, 19941.
2. The appellant is a part of Bhandari Hospital & Research Centre and claims to be engaged in performing bariatric surgery on patients suffering from morbid obesity coupled with life-taking diseases like Type-II diabetes and hypertension. According to the appellant, bariatric surgery is a gastro intestinal surgery carried out on the stomach in different manners like, by folding & stitching, by removing fat and cutting down, by insertion of outer bodies or by bonding the stomach. The appellant also claims that bariatric surgery is performed on morbidly obese individuals suffering from hypertension, Type-II diabetes, arthritis, lipid disorder or obstructed sleep apnea. The person selected for this surgery should also have a Body Mass Index2 of above 32.5 with co-morbidities. The surgery is said to be performed as per the Asia Pacific International Federation of Surgical Obesity Guidelines endorsed by Obesity Surgical Society of India. The appellant, therefore, claims that since bariatric surgery is performed to treat obesity and other associated medical ailments, it will not be a cosmetic surgery or plastic surgery. It is for this reason that the appellant claims that it did not pay service tax.
3. However, a show cause notice dated June 30, 2017 was issued to the appellant for the period 01.04.2015 to 1 the Finance Act 2 BMI 3 ST/51057/18 31.03.2016 requiring the appellant to explain why it did not pay service tax on the service provided through surgeries performed to cure obesity, which would be classifiable under cosmetic surgery or plastic surgery as defined in section 65(105)(zzzzk) of the Finance Act. It was alleged that surgeries were performed with the sole motive of weight reduction and had no relation with reconstruction or restoring anatomy or function of body affected due to congenital defects, development abnormalities, degenerative diseases, injury or trauma.
4. The Commissioner confirmed the demand of service tax with penalty and interest.
5. Shri Shashwat Arya, learned counsel appearing for the appellant submitted that the issue involved in this appeal has been decided in favour of the appellant in the appellant's own case in Mohak Hi Tech Speciality Hospital vs CCE & ST, Indore3 for the period 01.11.2011 to 31.03.2015.
6. This fact is not disputed by Shri Sanjay Kumar Singh, learned authorized representative appearing for the Department.
7. The present proceedings arise out of the show cause notice for the subsequent period from 01.04.2015 to 31.03.2016. For the reasons stated in the aforesaid order in the appellant's own case in Mohak Hi Tech Speciality Hospital, the order 3 2021 (45) GSTL 149 (Tri.-Del) 4 ST/51057/18 dated 12.02.2018 passed by the Commissioner of CGST & Central Excise deserves to be set aside and is set aside. The appeal is, accordingly, allowed.
(Dictated & pronounced in the open Court) (JUSTICE DILIP GUPTA) PRESIDENT (P. ANJANI KUMAR) MEMBER (TECHNICAL) Golay