2023 (4) TMI 923 - AT - Service Tax

Levy of Service Tax - Cosmetic or Plastic Surgery (as per Show Cause Notice) / Bariatric Surgery (as per the Appellant) - Business Support Service - Renting of Immovable Property - HELD THAT - It is seen that the same amount has been paid by the Appellant by valuing the service as inclusive of Service Tax. In the absence of any evidence that the invoices were clearly showing the amount collected was inclusive of Service Tax this submission cannot be accepted - Appellant are required to pay Service Tax on the full value of Rs.2, 50, 000/- received by them. The Department should verify the already paid amount and the Appellant should pay the balance amount and pay the interest on the entire Service Tax amount along with equal amount of penalty. Business Support Service - reverse charge mechanism - HELD THAT - The Appellant is not in a position to provide any documentary evidence to the effect that the service provided by them was liable for Service Tax by their client on Reverse Charge Mechanism basis. Therefore the confirmed demand of Rs.1, 27, 308/- along with interest and penalty thereon stands confirmed and their Appeal stands rejected to this extent. Cosmetic/ plastic surgery - HELD THAT - The issue is no more res integra and this issue is squarely covered by the decision of the Delhi Bench in the case of M/S. MOHAK HI TECH SPECIALITY HOSPITAL VERSUS PRINCIPAL COMMISSIONER OF CENTRAL EXCISE CUSTOMS SERVICE TAX INDORE MP 2020 (11) TMI 152 - CESTAT NEW DELHI . The Tribunal has dealt with an identical issue in this case and has considered the activity involved in detail in respect of Asian Bariatrics Rajkot. In that case the demands are dropped by the Additional Commissioner and this decision was accepted by the Department without any further Appeal being filed - It was held in the case 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 - following this decision of the CESTAT Delhi which is on identical issue wherein no further Appeal has been preferred by the Department as can be observed from the letter issue by the Assistant Commissioner Indore the confirmed demand of Rs.2, 22, 78, 812/- on account of cosmetic/ plastic surgery is set aside. Appeal disposed off.

Summary

Issues involved:
The issues involved in the judgment are related to confirmed demands on Cosmetic or Plastic Surgery (Bariatric Surgery), Renting of Immovable Property, and Business Support Service.

Cosmetic or Plastic Surgery (Bariatric Surgery):
The Appellant contested demands totaling Rs. 2,22,78,812 for bariatric surgeries, arguing that the surgeries were not cosmetic but metabolic procedures to reduce health risks. They relied on a case law and an RTI document to support their claim. The Tribunal, citing a similar case, set aside the demand, as the Department had accepted a similar decision in the past without filing further appeals.

Renting of Immovable Property:
The Appellant had paid Rs. 26,574 towards renting of immovable property before the Show Cause Notice was issued. However, the Tribunal held that the full Service Tax amount of Rs. 2,50,000 should be paid, along with interest and penalty, as no evidence showed the amount was inclusive of tax.

Business Support Service:
Regarding sponsorship services provided, the Appellant failed to prove that the liability for Service Tax lay with the client under Reverse Charge Mechanism. Thus, the demand of Rs. 1,27,308, along with interest and penalty, was confirmed by the Tribunal.

In conclusion, the Tribunal set aside the demand for Cosmetic/Plastic Surgery, upheld the demand for Renting of Immovable Property subject to modifications, and rejected the appeal for Business Support Service.