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TMI Blog2022 (3) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... treatment of Naturopathy in Nimba is provided with the help of qualified Naturopaths, all holding degree of BNYS from recognized Universities of India. It also provides alternative therapies from traditional Chinese Acupuncture Treatment, Reflexology and Acupressure Therapy etc. The treatment is provided at appellant's Center for treatment of ailments like Chronic Backaches and Headaches, besides Respiratory Disease, Gastro Intestinal Diseases and Muscular Skeleton Diseases. 3. The appellant filed an application for Advance Ruling before the Gujarat Authority for Advance Ruling (hereinafter referred to as the 'GAAR') and submitted that in Pre-GST regime, they had been availing exemption from payment of Service Tax as per Sl.No.2(i) of the Notification No. 25/2012-ST dated 20.06.2012. It has been submitted that the jurisdictional Central Excise Commissionerate, vide letter dated 19.01.2015 and 10.03.2015 had informed the appellant that any healthcare services when provided by way of diagnosis or treatment or care for illness, injury, abnormality of pregnancy in any recognized system of medicines provided in any institutions only were exempted from payment of service tax under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 28.06.2017 is not applicable to the appellant. 7. In view of the foregoing, the GAAR, vide Advance Ruling No. GUJ/GAAR/R/25/2020 dated 09.07.2019 held as follows :- "The applicant M/s. Oswal Industries Ltd. (M/s. Nimba Nature Cure Village) is not eligible to get the benefit of entry No.74 of exemption Notification No.12/2017-Central Tax (Rate) dated 28.06.2017." 8.1 Aggrieved by the aforesaid advance ruling issued by the GAAR, the appellant has filed the present appeal. 8.2 The appellant has submitted that the process of treatment provided at their centre is as follows:- (i) All patients have to fill an application form giving full details of their disease particulars, past and present. (ii) The filled-up form will go for the scrutiny of Nimba's doctor, and if found suitable and treatable under Naturopathy regimen, the case / cases will be approved for treatment. (iii) Duration of the treatment will be prescribed by the doctor. (iv) Since healing under naturopathy takes a longer duration of treatment, Nimba does not take patients less than for 7 days. (v) On receiving consent from the patient, a Reservation Confirmation letter is issued clarifying duration of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-patients as incidental / secondary supply. As the Naturopathy services provided by the appellant are exempt, the entire package of services shall be considered as exempt and accordingly remain outside the purview of the levy of GST. 9.1 The appellant has submitted that it is engaged in providing all recognized alternative health care services such as Naturopathy, Ayurveda, Yoga and Meditation, Physiotherapy and Special Therapies, at their premises with the help of highly qualified professional Doctors in the field of Naturopathy, researchers and support staff. 9.2 The appellant has further submitted that the classification of services provided by it is Heading 9993 (human health and social care services) most appropriately appears at Sr. No. 31 of Notification No. 11/2017-Central Tax (Rate) and as per Annexure to the said Notification, the specific service provided by them appears at Sr. No. 612. It has been submitted that the services provided by them gets covered under Service Accounting Code 999319 which covers health services of Naturopathy, which are provided by qualified practitioners, other than medical doctors. 9.3 The appellant has submitted sample case history (cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peutic centre and Naturopathy is prime activity. The treatment and days of stay is decided by their doctor. Only qualified doctors are working at the centre. No admission to the centre is given until the doctors diagnose or carry out checks on the patient. He submitted that medical health insurance does not cover their treatment cost. However Central Govt. Health Scheme has extended the benefit of treatment at their centre to the Central Govt. employees. He submitted that there is no outdoor patient department at their centre. He further submitted that their service was exempted under the Service Tax regime. That GAAR erred in considering their service as rental of rooms. That treatment cannot be provided without accommodation service. Accommodation and food is secondary service. That to set aside the order of GAAR and allow their application for classifying services provided by them, towards Naturopathy at Nimba Nature Cure Village, as services by way of health care services by a clinical establishment and grant benefit of exemption notification No.12/2017-Central Tax (Rate) dated 28.06.2017. FINDINGS :- 11. We have considered the submissions made by the appellant in the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnancy in any recognised 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; (zg) "health care services" means any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment, but does not include hair transplant or cosmetic or plastic surgery, except when undertaken to restore or to reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma; 14.1 The term "clinical establishment" has been defined to mean a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called. The appellant has not submitted whether and if so under which category of "clinical establishment" (hospital, nursing home, clinic, sanatorium or other), it falls. As such, the appellant has not submitted anything about these terms in the appeal filed before this authority. 14.2 The appellant had submitted before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 Similarly, draft "Development of Minimum Standards of Clinical Establishments - Ayurveda' is available on the website http://www.clinicalestablishments.gov.in/WriteReadData/86.pdf. 15.6 The said draft standards of Clinical Establishments for Ayurveda, inter-alia prescribes space requirement of 100 Sq. Ft. for OPD and 500 Sq. ft of IPD for Hospital with minimum of 10 Beds. Similarly, space requirement in case of Hospital up to 11-25 beds is OPD - 250 Sq. Ft. and IPD - 1250 Sq. ft. The space requirement for OPD (Out Patient's Department) and IPD (In Patient's Department) has been prescribed for 26-50 Bedded Hospital, 51-100 Bedded Hospital and Hospitals having more than 100 beds. Similarly, the equipment requirement for OPD and IPD of Hospitals with different bedded capacities has been prescribed. 15.7 Thus, it appears from the foregoing that the Clinic is an "outdoor care facility managed by a single Physician (Naturopathy, Ayurvedic or other) or a group of Physicians with or without a day care facility, where no overnight stay or care is provided". Hospital, on the other hand, is a health care facility with different bed capacities for indoor care and has ability to monitor and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d number of days. It is also not the case of the appellant that after completion of the stay the patient has to undergo some test to conclude that the treatment has been effective and he can be discharged. 17.1 In case an Outdoor Patient is provided care, the diet to be taken may be prescribed by the doctor providing care / treatment under Naturopathy / Ayurveda. It is said that each and every item in the Indian kitchen has medicinal property under Ayurveda. However, since the appellant do not provide care to Outdoor Patient, there is no scope of prescription of diet under Naturopathy / Ayurveda, which the person may take at his own home or from outside the appellant's premises. 17.2 The appellant's submission that the patients are provided food as diet which is prescribed by the treating doctor and no outside food will be allowed lest it hamper the progress of the treatment appears to be in continuum of appellant's policy of no Outdoor Patient care and minimum 7 days stay at the appellant's premises. 18.1 The appellant has submitted that it is engaged in providing all recognized alternative health care services such as Naturopathy, Ayurveda, Yoga and Meditation, Physiotherapy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not provide care even in case of Indoor Patients if the stay is for less than 7 days and the rate of the room per night forms the major part of the consideration towards the selected package, the appellant do not fall under the 'clinical establishment'. 21.1 At this stage, we may refer to the judgement of the Constitutional Bench of the Hon'ble Supreme Court in the case of Commissioner of Customs (Import), Mumbai Vs. Dilipkumar & Company [2018 (361) E.L.T. 577 (S.C.)], wherein it has been held as follows - "41. After thoroughly examining the various precedents some of which were cited before us and after giving our anxious consideration, we would be more than justified to conclude and also compelled to hold that every taxing statute including, charging, computation and exemption clause (at the threshold stage) should be interpreted strictly. Further, in case of ambiguity in a charging provision, the benefit must necessarily go in favour of subject/assessee, but the same is not true for an exemption notification wherein the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State." 42 to 47 ......... 48. The next authority, which needs to be refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure facilities, paramedic care, emergency services, checking of temperature, weight, blood pressure, etc. Will GST be applicable on such money retained by the hospitals? (3) Food supplied to the patients : Health care services provided by the clinical establishments will include food supplied to the patients; but such food may be prepared by the canteens run by the hospitals or may be outsourced by the Hospitals from outdoor caterers. When outsourced, there should be no ambiguity that the suppliers shall charge tax as applicable and hospital will get no ITC. If hospitals have their own canteens and prepare their own food; then no ITC will be available on inputs including capital goods and in turn if they supply food to the doctors and their staff; such supplies, even when not charged, may be subjected to GST. Health care services provided by a clinical establishment, an authorised medical practitioner or paramedics are exempt. [Sl. No. 74 of notification No. 12/2017-C.T. (Rate), dated 28-6-2017 as amended refers]. (1) ......... (2) Healthcare services have been defined to mean any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12-Service Tax and referred to letter F.No. V/ST-Div/Nimba/2014-15 dated 10.03.2015 of the Deputy Commissioner, Central Excise, Kalol Division. 23.2 We have perused letter F.No. IV/16-/ST-Div/Misc-Tech/2014-15 dated 19.01.2015 and letter F.No. V/ST-Div/Nimba/2014-15 dated 10.03.2015 of the Deputy Commissioner, Central Excise, Kalol Division addressed to the appellant (M/s. Nimba Nature Cure Village). In the letter dated 19.01.2015, it has been mentioned that the appellant had not specifically mentioned in its letter as to what type of naturopathy therapy services were being provided by it to clients / customers in its establishment. The said letter dated 19.01.2015 has referred to definition of 'Health Care Service' and 'Clinical Establishment' defined under clause (t) and (j) of paragraph 2 of Notification No. 25/2012-Service, the definition of 'recognised system of medicines' defined under Section 2(h) of the Clinical Establishments Act, 2010 and concluded as follows - "Hence, it appears that any Health care services when provided by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognized systems of medicines provided in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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