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3. However, a show cause notice dated October 4, 2013 was issued to the appellant 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.

"The definition leaves no doubt to understand that the said service is taxable when it is provided in relation to cosmetic or plastic surgery exclusive of surgery performed to treat specified biological orders.

It is also a fact that the surgery is specifically and specially made to control obesity whether associated with any disease like arthritis, hypertension, type-II diabetes etc. or otherwise and bariatric surgery is not carried out to treat any type of disease but to curb only obesity or reduction of weight. It is also a fact that a person suffering from high obesity takes prior appointments with doctors. They are examined by the doctor, records are maintained, numerous test are conducted and then only it is decided to carry out the surgery keeping in mind the pre and post surgery complications. The fact cannot be denied that surgery is carried out not only by general surgeons but a bariatric surgeon which is a fact accepted by the Director of the Noticee in this statement dt. 25/09/2013 wherein with response to a specific question, he had categorically stated that "as a MS General surgeon and with special training in bariatric surgery and advance minimal access surgery I am entitled to perform bariatric surgery. Also the surgical review corporation of USA has endorsed myself as a bariatric surgeon of excellence and the centre as a centre of excellence in bariatric surgery". It is worthwhile to mention here that the statement is never retracted by the directors of the Noticee firm. These facts further leaves no doubt that the surgery performed is neither for cure of type II diabetes, hypertension, hypothyroidism, arthritis etc. as while carrying out the said surgery the specialized doctors treat diabetic patients, hypertension patients or ortho- paedicians doctors specialized to treat arthritis have no role to play. Not only this, the basic requirement to carry out the surgery is BMI(Body Mass Index) and not the aforementioned diseases the person is afflicted with. The BMI is nothing but only a scale to decide the degree of a person obesity. All these facts clearly establish that bariatric surgery is related to "weight reduction" by making a surgery and not a treatment of degenerative disease like diabetes, cancer, heart disease, arthritis etc."

2.4.2 Some of the commonly known aesthetic/cosmetic surgeries are abdomenoplasty, (tummy tuck);

blepharoplasty (eyelid surgery0; mammoplasty; buttock augmentation and lift; rhinoplasty (reshaping of nose); otoplasty (ear surgery); Rhytidectomy (facelift); liposuction (removal of fat from the body) brow lift; cheek augmentation; facial implants; lip augmentation; forehead lift; cosmetic dental surgery; orthodontics; aesthetic dentistry; laser skin surfacing etc. This para of the same circular specifically mentions "liposuction" as a cosmetic surgery. The "liposuction" is nothing but a surgery with the sole purpose of removal of fat from body or in other words resulting in weight loss or reductions of morbid obesity. The same is the case with that of bariatric surgery here in carried out by the Noticee in their premises which is also with a sole purpose of weight loss or reduction of morbid obesity. Thus, when the sole purpose of both the surgeries is nothing but weight loss or reduction of morbid obesity and one i.e. namely liposuction has already got a place under "Cosmetic & Plastic Surgery Services" how the other one surgery named differently in medical terms as bariatric surgery but with the same purpose i.e. weight loss or reduction of morbid obesity can be termed as other than "Plastic & Cosmetic Surgery Services" and definitely the answer is nothing but to treat the bariatric surgery only and only as "plastic & cosmetic surgery services" liable to service tax and brought to service tax net with effect from 01/09/2009 vide the Finance Act, 2009.

4.7 I find that the Noticee in support of their above explanation of Bariatric Surgery submitted various nationally and internationally acclaimed study reports and research materials. On perusal of these reports and research materials, I find in "guidelines for Bariatrics (Metabolic) Surgery for Indian Population" (Section 25 Surgery, Chapter 172, published by P. Praveen Raj, C Palanivelu, Author for Medical Books) indicate Bariatric Surgery referred to as metabolic surgery and is performed on the stomach and/or intestines with the intent of resolution of metabolic syndrome [obesity, Type 2 diabetes mellitus (DM), hypertension, dyslipidemia]. On perusal of copy of "The New England Journal of Medicine", published in December 23, 2004, Vol.351 No. 26, page 2683, I find that the Article under heading "Lifestyle, Diabetes, and Cardiovascular Risk Factors 10 years after Bariatric Surgery" concluded "As compared with conventional therapy, bariatric surgery appeared to be a viable option for treatment of severe obesity, resulting in long term weight loss, improved lifestyle, and, except for hyperchoterolemia, amelioration in risk factors that were elevated at baseline." Further, on perusal of copy of 'fact sheet' published by the American Society for Metabolic & Bariatric Surgery (ASMBS), I find that the Medical and Government groups supported Bariatric Surgery which resulted in long term weight loss and significant reductions in cardiac and other risk factors ST/54884/2014, ST/51333/2016 & ST/53111/2016 for some severely obese adults. I further find that the Medical Council of India, which is a regulating/controlling authority for medical, profession in India, vide their letter No. MCI- 23(1)/2014/Med./26765 dated 02-8-2014, addressed to the Dean, Sri Aurobindo Medical College & PG Institute, Indore has clarified that "Bariatric Surgery is a Gastrointestinal non Cosmetic Surgery under the rubric of surgical gastroenterology and not plastic surgery."