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TMI Blog2022 (6) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... review of laboratory data, are broad enough to include occupational health check ups within the meaning of word diagnosis. Further, occupational health check-ups provide preventive care which falls in the scope of the word care - As per Entry at Sr. No. 74 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and Notification No. 12/2017-State Tax (Rate) dated 30.06.2017 Health Care Services must be supplied by clinical establishment, an authorized medical practitioner or para-medics and these services are not limited to specified or particular conditions, diseases or anatomical reasons as well as these services can be provided in general practitioner s practices and also delivered by outpatient clinics, at home, in firms, schools etc or by phone, internet or other means. In view of definition of Health Care Services, it is clear that there is no disparity when provided by a clinical establishment to a patient inside the clinical establishment or outside the said establishment. The supply of Occupation Health Checkup Service by the hospital i.e. nursing staff, Doctors, Paramedical staff on hospital s payroll working in different corporate for providing health che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpted from CGST as per Sl. No. 74 of the above Notification. (ii) The applicant will be liable to pay GST @ 18% (CGST @9% + SGST 9%) on the payment received directly from the business entity for health services provided to employees of the business entities in relation to Occupational Health Check-up (OHC) or preventive care along with ambulance facility and allied medical services under Human health and social care services in terms of S. No. 31 of the Table of the Notification No. 11/2017-Central Tax (Rate) dated 28.06.2017. 4. Aggrieved by the aforesaid Advance Ruling, to the extent ruling given in respect of question (ii), the appellant has filed the present appeal. 5.1 The appellant has submitted that some hazards are common for all industries, like hazardous substances, dust, machinery related accidents, trips and falls, physically demanding work, heat and cold, etc. It has been submitted that the best way to avoid any accident to happen is to have preventive safety process in place and get an individual s health check done regularly; that in many companies, it is becoming mandatory to have a pre-employment health check-up done even before hiring an employee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is SAC (Services Accounting Code), specifically mentioning that these services are not limited to specified or particular conditions, diseases or anatomical regions; that they can be provided in general practitioners practices and also delivered by outpatient clinics, at home, in firms, schools etc. or by phone, internet or other means. The appellant has submitted that the said SAC is very well covered within the purview of Sr. No. 74 Heading 9993 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017, as amended. 5.5 The appellant has submitted that the services being rendered by the appellant doesn t fall within the meaning of social services as mentioned herein above along with the relevant SAC as the Occupational Health Check-up is not in the nature of Social Services but in the nature of Health Care Services. 5.6 The appellant has relied on a judgement delivered by European Court of Justice in the case of Peter d Ambrumenil, Dispute Resolution Services Ltd. Vs. CCE [2012] 36 STT 537 (ECJ) wherein the Hon ble Court held that conducting medical examinations or taking medical samples of individuals for employers or insurance companies or certification of med ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to claim benefit of exemption, what is important is that the above said Health Care Services must be supplied by a clinical establishment, an authorized medical practitioner or paramedics and not to whom, as it can also be provided to firms, schools etc. 6.5 It has been submitted that when the laboratory testing facilities are considered as Health Care Services, Occupational Health Care service is broad enough to include within its ambit laboratory services as well. 7.1 The appellant has also referred to Notification No. 24/2010-ST dated 22.06.2010 and Section 65(105)(zzzzo) of the Finance Act, 1994, whereby Service Tax was made applicable on the service provided or to be provided by any hospital, nursing home or multi-speciality clinic (a) to an employee of any business entity, in relation to health check-up or preventive care, where the payment for such check-up or preventive care is made by such business entity directly to such hospital, nursing home or multi-speciality clinic; or (b) to a person covered by health insurance scheme, for any health check-up or treatment, where the payment for such health check-up or treatment is made by the insurance company dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere has been change in one of the two Members of this authority consequent upon the transfer and posting of the Chief Commissioner, Gujarat Goods and Services Tax, after Personal Hearing has been held in this case. The appellant was therefore given fresh hearing on 22.03.2022. The authorized representative of the appellant appeared for the personal hearing, which was conducted online on 22.03.2022, and re-iterated the contents of the appeal and also the additional written submission made vide their letter dated 10.08.2021. In view of the submissions made he requested to grant exemption as per Entry 74 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and set aside the ruling of GAAR in respect of Question No. 2. FINDINGS :- 11. We have considered the submissions made by the appellant in the appeal filed by them, in the written submissions as well as at the time of personal hearing, ruling given by the GAAR and other evidences available on record. 12. The issue raised by the appellant in the present case is whether the supply of Occupational Health Check up service by the hospital i.e. nursing staff, doctors, paramedical staff on hospital s payroll, work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udes 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 appellant under their proposed agreement of Occupational Health Checkups will provide round the clock Doctors, Nurses, medical assistants, Paramedical staff etc for offering treatment, diagnosis, and allied healthcare services at the site of their recipient unit. The consideration will be based on the requirements of the recipient unit. The above personnel deployed at the unit shall look after emergencies, medical treatment, medical check-ups etc of the employees of the unit. They will be carrying out regular health check up of employees viz. pre-employment health check up ; prevent work related injuries, diseases and potential health hazards; monitor health status at periodic intervals ; providing immediate treatment as when required which may involve getting ambulance services in case patient needs ICU or immediate hospital admission. 14.2 Any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 It is clear that objective of medical examination is diagnosis. The definition of diagnosis, as per Cambridge dictionary means a judgement about what particular illness or problem is, made after examining and as per freedictionary.com is the act of process of identifying or determining the nature and cause of a disease or injury through evaluation of patient s history, examination and review of laboratory data, are broad enough to include occupational health check ups within the meaning of word diagnosis. Further, occupational health check-ups provide preventive care which falls in the scope of the word care . 15.1 As per Entry at Sr. No. 74 of Notification No. 12/2017-Central Tax (Rate) dated 28.06.2017 and Notification No. 12/2017-State Tax (Rate) dated 30.06.2017 Health Care Services must be supplied by clinical establishment, an authorized medical practitioner or para-medics and these services are not limited to specified or particular conditions, diseases or anatomical reasons as well as these services can be provided in general practitioner s practices and also delivered by outpatient clinics, at home, in firms, schools etc or by phone, internet or other means. 15.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Residential health-care services other than by hospitals 615 999322 Residential care services for the elderly and persons with disabilities 616 Group 99933 Other social services with accommodation 617 999331 Residential care services for children suffering from mental retardation, mental health illnesses or substance abuse 618 999332 Other social services with accommodation for children 619 999333 Residential care services for adults suffering from mental retardation, mental health illnesses or substance abuse 620 999334 Other social services with accommodation for adults 621 Group 99934 Social services without accommodation for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l practitioner or para-medics, the following services are mentioned: (a) 99932 Residential care services for the elderly and disabled (b) 99933 Other Social Service with accommodation (c) 99934 Social Services without accommodation for the elderly and disabled (d) 99935 Other Social Service with accommodation From the above, it is evident that the services by way of Occupation Health Check-ups or preventive care are not covered by abovementioned social services mentioned at Sr.(a) to (d). 17. Further, in previous Service Tax regime, vide Notification No. 24/2010-ST dated 22.06.2010 and Section 65(105)(zzzzo) of the Finance Act, 1994, whereby Service Tax was made applicable on Occupational Health Check-up Services. The Government subsequently exempted the above service vide Notification No. 30/2011-ST dated 25.04.2011. The definition of Health Care Service is similar in GST regime as compared to Finance Act, 1994. We find that the GAAR failed to appreciate the same. 18. The appellant has not submitted any agreement related to occupational health check up service proposed to be provided by it, either before the GAAR or this Authority, as this is a propose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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