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TMI Blog2019 (4) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... providing them the number of patients. Hence, the share of revenue so collected in the hands of the appellant cannot be categorized as a consideration for rendering the health service to the patients. The appellants had not provided any business support service to the consultants/doctors or patient, therefore, no service tax is payable by appellants under the category of Business Support Service - Appeal allowed - decided in favor of appellant. - Appeal No.ST/51795/2015,60331/2017 & 61020/2018 - A/60259-60261/2019-CU[DB] - Dated:- 21-2-2019 - Mr. Ashok Jindal, Member (Judicial) And Mr. Bijay Kumar, Member (Technical) Sh/Shri Pawan Kumar, Sparsh Bhargav, Praveen Kashyap, Advocates for the appellant Shri Atul Handa, AR for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicated and the demand of service tax was confirmed. The appellants are before us against confirmation of demand of service tax along with interest and imposition of penalties under various Section 76,77,78 of the Finance Act, 1994. 5. Heard the parties and considered the submissions. 6. We find that the issue has been settled by this Tribunal in the case of M/s. Sir Ganga Ram Hospital and others-2018-TIOL-352- CESTAT-DEL wherein this Tribunal has observed as under:- 4. We have heard both the sides and perused the appeal records. We have also perused specifically the terms of some of the agreements on record. The dispute in the present appeals is with reference to the tax liability of the appellant hospitals under the category ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id, procedure for termination of agreement, etc. The agreements generally talk about appointment of consultants to provide services to the patients who will visit or admitted in the appellants hospital. The doctors will receive a percentage of share of the collection from the patients in case of consultation, procedures and surgeries done by them. In some cases, there is a provision for treating patients from low economic background without any financial benefits. On careful consideration of various terms and conditions and the scope of arrangement, we are of the considered view that such arrangement are for joint benefit of both the parties with shared obligations, responsibilities and benefits. The agreements do not specify the specific n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, all the supporting assistance are also provided when the patients are in the appellant hospital premises. The appellant hospital also manages the followup procedures and provide for further health service in the manner as required by the patients. As can be seen that the appellants hospitals are actually availing the professional services of the doctors for providing health care service. For this, they are paying the doctors. The retained money out of the amount charged from the patients is necessarily also for such health care services. The patient paid the full amount to the appellant hospitals and received health care services. For providing such services, the appellants entered into an agreement, as discussed above, with vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from an occupation which is substantially the production or sale or arrangements for the production or sale of commodities a professional activity must be an activity carried on by an individual by his personal skill and intelligence and unless the profession carried on by (a person) also partakes of the character of a commercial nature the professional activity cannot be said to be an activity of a commercial character. 8. Applying the above ratio and examining the scope of the tax entry for BSS, we are of the considered view that there is no taxable activity identifiable in the present arrangement for tax liability of the appellant hospitals. 9. Under negative list regime w.e.f. 01.07.2012, the health care services are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stic surgery, except when undertaken to restore or to reconstruct anatomy or functions of both affected due to congenial defects, developmental abnormalities, injury or trauma. 11. These two provisions available in Notification No.25/2012 will show that a clinical establishment providing health care services are exempted from service tax. The view of the Revenue that in spite of such exemption available to health care services, a part of the consideration received for such health care services from the patients shall be taxed as business support service/taxable service is not tenable. In effect this will defeat the exemption provided to the health care services by clinical establishments. Admittedly, the health care services are prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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