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TMI Blog2017 (5) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... aken note of is that under Serial No.2 of the exemption notification health care services by a clinical establishment is exempted from payment of service tax. Any institution, which provides services by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy comes within the definition of health care services. That the petitioner renders such services is not in doubt even from the findings recorded by the 2nd respondent herein - Where the 2nd respondent appears to have gone wrong is that the 2nd respondent has taken the services provided by the petitioner for the wellbeing of an individual, as something out of the purview of the diagnosis or treatment. The 2nd respondent has fallen into an error in thinking so, due to a fundamental misconception that is normally prevalent in society. While Allopathic system of medicine is only for diagnosis and treatment of illness, many of the indigenous system of medicines, seek to prevent rather than prescribe. An exemption notification, which is understood by the respondents to confer a benefit upon the clinical establishments, cannot be made inapplicable to a holistic health care institution such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directing the party to avail the statutory alternative remedy, under two contingencies, viz., (a) wherever there is violation of natural justice; and (b) where there is lack of jurisdiction. 4. Since the case on hand is projected as one falling under the second category, we shall examine the same to a limited extent. 5. A perusal of the impugned Order in Original shows that a show cause notice was issued to the petitioner, on the basis of information gathered by the preventive section to the effect that the petitioner was providing various services, such as, steam bath, sauna/infrared bath, foot and arm bath, whirlpool bath, circular jet, full emersion bath, spinal spray, spinal bath, hip bath, hydro deluxe bath, jacuzi, mud bath, neem paste bath, plant leaf bath, sand bath, massage, mud packs, vibro massages, physiotherapy, exercises, yoga, meditation, colon therapy, etc. On the basis of the said information, the 2nd respondent came to the conclusion that what was offered by the petitioner fell under the category of health and fitness services and that therefore, service tax was payable by the petitioner. 6. In response to the show cause notice issued, the petitioner sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganized by a recognized sports body; (b) another recognized sports body; 10. In the order impugned in the writ petition, the 2nd respondent has not disputed the claim of the petitioner that they have registered themselves under Section 12AA of the Income Tax Act as a charitable institution. But what the 2nd respondent did was to go by the definition of the expression charitable institution found in the definition part of the notification dated 20.06.2012. The definition of the expression charitable activities under para-2(k) of the exemption notification dated 20.06.2012 reads as follows: Charitable activities means activities relating to (i) public health by way of - (a) care or counseling of (i) terminally ill persons or persons with severe physical or mental disability, (ii) persons afflicted with HIV or AIDS, or (iii) persons addicted to a dependence-forming substance such as narcotics drugs or alcohol; or (b) public awareness of preventive health, family planning or prevention of HIV inflection; (ii) advancement of religion or spirituality; (iii) advancement of educational programmes or skill development relating to, - (a) aba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c health by way of care and counselling. Therefore, even on the basis of the findings recorded in para-30.2 it is not possible to conclude that the activities carried on by the petitioner would not fall within para-2(k) of the exemption notification. 14. An important aspect to be taken note of is that under Serial No.2 of the exemption notification health care services by a clinical establishment is exempted from payment of service tax. The expression clinical establishment is defined in para-2(j) of the exemption notification as follows: clinical establishment means a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called, that offers services or facilities requiring diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized system of medicines in India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services of diseases; 15. It is clear from the above definition that even Multi Specialty Hospitals and Nursing Homes, which are obviously run on profit motive, are entitled to the exemption. It is important to note th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enous system of medicines, seek to prevent rather than prescribe. 19. One of us (VRS,J) had an occasion to consider the significance of and the need to nurture indigenous systems of medicine, in a decision rendered on 12.03.2012 in Dr. T. Arutselvam v. The Government of Tamilnadu, (W.P.Nos.3589 and 4452 of 2012 of the Madras High Court). Paragraph Nos.53 to 60 of the said decision is extracted as follows: 53. The history of Ayurveda and Siddha dates back to several centuries. Literally meaning the science of life , Ayurveda is often used in a narrow sense as a system of medicine , which considerably dilutes and distorts its real scope and objective. Health, according to Ayurveda is not only freedom from disease. According to Susruta, one of the great early practitioners, it is a state of the individual where, in addition to harmony among the functional units (dosas), digestive and metabolic mechanisms (agnis), structural elements (dhatus), and waste products (malas), a person should also be in an excellent state (prasanna) of the spirit (atman), senses (indriyas), and mind (manas). The Encyclopaedia Britannica states that Ayurvedic practitioners work in rural areas, provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... much skin as it had covered, leaving undivided a small slip between the eyes. This slip preserves the circulation till a union has taken place between the new and old parts. The cicatrix of the stumps of the nose is next paired off and immediately behind the new part an incision is made through the skin which passes around both alae, and goes along the upper lip. The skin now brought down from the forehead and being twisted half around, is inserted into this incision, so that a nose is formed with a double hold above and with its alae and septum below fixed in the incision. A little Terra Japanica (pale catechu) is softened with water and being spread on slips of cloth, five or six of these are placed over each other to secure the joining. No other dressing but this cement is used for four days. It is then removed and clothes dipped in ghee (clarified butter) are applied. The connecting slip of skin is divided about the twentieth day, when a little more dissection is necessary to improve the appearance of the new nose. Four, five or six days after the operation, the patient is made to lie on his back and on the tenth day bits of soft cloth are put into the nostrils to k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r.C.N.Deivanayagam, who is a Fellow of the Royal College of Physicians (Edinburgh), who retired as the Superintendent of the Government Hospital of Thoracic Medicine, Tambaram, presented a paper titled HIV/AIDS and Siddha System of Healthcare - an experience of 13 years . He reported in the said paper that after the Government Hospital of Thoracic Medicine at Tambaram adopted an open door policy for HIV/AIDS in 1992, there was an exponential increase in the number of HIV sufferers seeking care and treatment. While the number of patients were only 2 in 1993, it rose upto 365 in 1996 and 6,791 in the year 2000. Since ARV Drugs could not be provided by the Government to all the patients, the Hospital invited 90 Siddha Physicians to a Seminar to identify suitable Siddha formulations to combat the killer disease. All of them agreed on formulations containing processed Sulphur and processed Mercury to fight the disease. As a consequence, a formulation known as RAN was born as the child of Tambaram. The acronym RAN stands for Rasagandhi Mezhugu, Amukkira Chooranam and Nellikkai Ilagam. It has become an immunogenic and adaptogenic drug. The said Medical Practitionaer demonstrated through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion programmes. This implies that India should go deeper into international debt by borrowing more money for these programmes, thus supporting the propagation of Western medicine on behalf of the multi- national drug and healthcare companies. Apart from the questionable economics of this prescription, it completely overlooks the existence of alternative systems of medicine and the possibility of using them to ensure healthcare coverage for the rural and urban populations of the nation. 60. Therefore, it is clear that there has been some resistance worldwide, to the Government patronage of indigenous systems of medicine. But Latin American countries and even China, spend millions of dollars for developing indigenous systems of medicine. The National Health Service of the United Kingdom is said to be funding billions of pounds every year on Homeopathy, despite opposition. In February 2010, the Science and Technology Committee of the British Parliament submitted a report alleging that there is no evidence to show that Homeopathic treatments work better than a placebo. Therefore, the Committee recommended that the National Health Service should cease to provide funds for Homeop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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