2020 (11) TMI 152 - AT - Service Tax

Taxability - Whether bariatric surgery which the appellant performs would be cosmetic surgery or plastic surgery so as to be taxable under section 65(105)(zzzzk) of the Finance Act, 1994 - Period from November, 2011 upto March, 2015 - HELD THAT - The bariatric surgery is distinct from the plastic or cosmetic surgery. Bariatric surgery is a procedure through which the intake capacity of the patient is restricted, thereby resulting in weight loss which is necessary for control of obesity related diseases, while plastic or cosmetic surgery is intended to improve the outer shape and appearance of the body. Bariatric surgery is undertaken only on those patients who are diagnosed with morbid obesity, which itself is a disease, with other co-morbidities and on such patients who have a BMI of over 32.5. The Central Board of Excise and Customs has also clarified that the service proposed to be taxed were cosmetic surgery and plastic surgery undertaken to preserve or enhance physical appearance or beauty. Liposuction has been mentioned to a commonly known cosmetic surgery. Liposuction, however, is not bariatric surgery. The aim of liposuction is only to remove the excess fat of the body from specific target areas through suctioning so as to improve the shape and contour of the body, but the aim and object of bariatric surgery is to cure the state of morbid obesity and related disease. The discharge summary of the patients has been enclosed Annexure-5 to the appeal memo. The diagnosis and the summary of the case in all the discharge summary mentions morbid obesity with one or more life-taking disease of the nature referred to by the appellant. It is, therefore, not possible to conclude from the discharge summary that the patients undergoing bariatric surgery did not suffer from morbid obesity coupled with such diseases. Thus, when the Department itself accepted the findings of the Additional Commissioner in the aforesaid order dated February 22, 2016 that bariatric surgery is not cosmetic surgery or plastic surgery, it is not open to the Department to now contend that bariatric surgery is cosmetic surgery or plastic surgery. The confirmation of demand in the impugned order for this reason cannot be sustained - thus it can be concluded that bariatric surgery performed by the appellant on patients suffering from morbid obesity coupled with life-taking diseases like Type-II diabetes and Hypertension, arthritis, lipid disorder or obstructed sleep apnea or disease of a like nature, cannot not be subjected to service tax under section 65(105)(zzzzk) of the Finance Act. Appeal allowed.- decided in favor of appellant.

Issues Involved:
1. Classification of bariatric surgery under cosmetic surgery or plastic surgery for service tax purposes.
2. Applicability of service tax on bariatric surgery before and after July 1, 2012.
3. Interpretation of section 65(105)(zzzzk) of the Finance Act, 1994.
4. Validity of the show cause notices and the demands raised.
5. Applicability of the Exemption Notification dated June 20, 2012.

Detailed Analysis:

1. Classification of Bariatric Surgery:
The core issue was whether bariatric surgery performed by the appellant falls under "cosmetic surgery" or "plastic surgery" as defined in section 65(105)(zzzzk) of the Finance Act, 1994. The appellant argued that bariatric surgery is a gastrointestinal surgery aimed at treating morbid obesity and related life-threatening diseases like Type-II diabetes and hypertension, not for enhancing physical appearance. The Commissioner, however, classified bariatric surgery as cosmetic surgery, emphasizing that it is performed primarily for weight reduction, irrespective of any associated diseases.

The Tribunal noted that bariatric surgery is distinct from cosmetic or plastic surgery. Bariatric surgery involves procedures like Adjustable Gastric Banding, Sleeve Gastrectomy, Roux-en-Y Gastric Bypass, and Biliopancreatic Diversion with Duodenal Switch, which are aimed at reducing the stomach's capacity to intake food, thus aiding in weight loss to control obesity-related diseases. The Tribunal referred to various medical definitions and authoritative sources, including the Medical Council of India and the Indian Medical Association, which classified bariatric surgery as a non-cosmetic gastrointestinal surgery.

2. Applicability of Service Tax Before and After July 1, 2012:
For the period from November 1, 2011, to June 30, 2012, the Commissioner confirmed the demand of service tax under section 65(105)(zzzzk). For the period post-July 1, 2012, the appellant argued that the surgeries were exempt under the Exemption Notification dated June 20, 2012, as "health care services" provided by a clinical establishment. The Tribunal agreed with the appellant, noting that the Exemption Notification defined "health care services" to include diagnosis, treatment, or care for illness, injury, deformity, or abnormality in recognized systems of medicine, excluding cosmetic or plastic surgery unless undertaken to restore or reconstruct anatomy or functions affected by congenital defects, developmental abnormalities, injury, or trauma.

3. Interpretation of Section 65(105)(zzzzk):
The Tribunal emphasized that the section is divided into two parts: the "means part" and the "exclusion part." The "means part" includes any service related to cosmetic or plastic surgery, while the "exclusion part" excludes surgeries undertaken to restore or reconstruct anatomy or functions affected by congenital defects, developmental abnormalities, degenerative diseases, injury, or trauma. The Tribunal found that bariatric surgery does not fall within the "means part" as it is not cosmetic or plastic surgery.

4. Validity of Show Cause Notices and Demands:
The Tribunal scrutinized the show cause notices and the demands raised. It found that the appellant had consistently argued that bariatric surgery is not cosmetic or plastic surgery. The Tribunal referred to a previous order by the Additional Commissioner, which had accepted that bariatric surgery is not taxable under section 65(105)(zzzzk), and noted that the Department had accepted this order.

5. Applicability of the Exemption Notification:
The Tribunal concluded that bariatric surgery performed by the appellant qualifies as "health care services" under the Exemption Notification dated June 20, 2012. It highlighted that the surgery is aimed at treating morbid obesity and related diseases, not at enhancing physical appearance.

Conclusion:
The Tribunal set aside the impugned orders dated July 22, 2014, February 26, 2016, and September 27, 2016, and allowed the appeals. It concluded that bariatric surgery performed by the appellant is not subject to service tax under section 65(105)(zzzzk) of the Finance Act, 1994, as it is not cosmetic or plastic surgery but a treatment for morbid obesity and related diseases.

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