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TMI Blog2022 (12) TMI 1297X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant have been held to be clinical establishment by the Court below - the services provided by the appellant, save and except for hypertrihosis treatments and hair laser comb treatment fall under healthcare services and are accordingly exempt under Notification No. 25/2012-ST. Services rendered by the appellant assessee in respect of Hypertrichosis Treatments and Hair Laser Comb Treatment are held taxable under Cosmetic and Plastic Surgery service. Invocation of extended period of limitation - HELD THAT:- The appellant had maintained proper records of the transaction and has taken registration under the provisions of Service Tax and were making regular compliances. Few returns were pending for which plausible explanation has been given being non-availability of the concerned staff. The appellant has regularly deposited their admitted taxes and have also paid tax and filed pending ST-3 returns during the course of investigation. The demand has been raised by the Revenue based on the accounts and records maintained by them. Accordingly, the extended period of limitation is not invocable. Levy of penalties - HELD THAT:- As there is no suppression of facts with mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigations / enquiry from November, 2013 and also searched the premises of the appellant being the registered office at Secunderabad and various Oliva Clinics Hair located at Hyderabad and Secunderabad. During the course of enquiry, the appellant filed upto date returns and also deposited the admitted tax. On completion of investigation, show cause notice dated 29.08.2017 was issued invoking the extended period of limitation for the period 01.07.2012 to 31.03.2016, as it appeared to Revenue that some of the services which the appellant was treating as non-taxable are taxable, proposing to demand service tax of Rs.5,61,25,053/- with proposal to appropriate the amount of Rs.1,36,07,711/- deposited as per the ST-3 returns with further proposal to demand interest and impose penalty under Section 76, 77 and 78 of the Act. Penalty was also proposed on Sh. Soma Prasanth, Medical Director of the assessee company. The appellant contested the show cause notice by filing detailed reply to the show cause notice and annexing the copy of guidelines on taxability of various service circulated by Indian Association of Plastic Surgeons . The appellant also provided the break-up of taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t include any surgery undertaken to restore or reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, degenerative diseases, injury or trauma. Sub-section (zzzzo) provides, to any person,- (i) by a clinical establishment; or (ii) by a doctor, not being an employee of a clinical establishment, who provides services from such premises for diagnosis, treatment or care for illness, disease, injury, deformity, abnormality or pregnancy in any system of medicine; 7.1 Further Notification No. 30/2011-ST dated 25.04.2011 provides exemption for services referred to under Section 65(105)(zzzzo) from the whole of service tax. 7.2 With effect from 01.07.2012 under Section 65B (44), service means any activity carried out by a person for another for consideration, and includes a declared service, subject to exception provided therein. 7.3 Further taxable service have been defined under Section 65B(51) means any service on which service tax is leviable under Section 66B. 7.4 The mega exemption Notification No. 25/2012 (as amended) at Sl. No. 2 provides health care services by a clinical establishment , an authorised me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticularly skin type. The most common areas for melasma to appear is on face and also on other areas of the body especially those exposed to lot of sunlight. Further reference to Rook s text book of Dermatology, wherein it is stated that melasma may be caused due to Oral Contraceptives, Pregnancy/UVradiation /Drugs such as phenytoin. Due to malfunction of melasma, the colour making cell in the skin, causing them to produce too much colour. Thus, melasma is a skin disorder which requires detailed investigation and treatment. The treatment may include use of topical creams, nomelan phenol peels and also Q-switch Nd-YAG lasers treatment. Thus, melasma is a disease / disorder treated by the doctors in the clinical establishment of the appellant. 8.3 Birth Mark treatment Learned Counsel urges that the Adjudicating Authority in para 40.1 of the impugned order has observed that birth mark treatment are treated by way of surgical removal and medicinal treatment. Further, referring to the text book of Dermatology urges that birthmark also affects the sclera in the eye as well as the skin adjacent to the eye. Nevus of Ota is an extensive, bluish, patchy, dermal melanocytosis. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them and also the services they are treating taxable or non-taxable supported by legal opinion. Thus, extended period of limitation is not invocable. 9.1 It is also urged that there was delay in filing of return for the period after October, 2013, which was due to non-availability of the concerned staff. The appellant have been paying service tax on the taxable services falling under the head Cosmetic and Plastic Surgery. Further, admittedly on the services under dispute the appellant has not collected any service tax. So far the appeal of the Revenue is concerned, the appellant relies on the findings in the impugned order, so far the services in dispute which have been held to be non-taxable. 10. Opposing the appeal, learned Authorised Representative (AR) for Revenue relies on the impugned order. At the same time, ld. AR in support of Revenue s appeal opposes the part of the impugned order wherein the services in dispute have been held to be nontaxable. Relying on the definition of cosmetic and plastic surgery services under Section 65(105)(zzzzk), states that the services in relation to cosmetic and plastic surgery are taxable subject to the exclusion of surg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... generative diseases, injury or trauma, but for the sake of aesthetic looks only. Hence, the services provided by the appellant assessee are not covered under the exemption Notification No. 25/2012-ST. 12.2 Learned AR further urges that the Commissioner has rightly held as taxable services (i) Treatment of Melasma and pigment disorders (ii) Hypertrichosis treatment (iii) Birth Mark treatment (iv) Hair Laser Comb treatment. 12.3 Learned AR further relies on the ruling of Hon ble Supreme Court in the case of Dalip Kumar wherein it has been held that exemption notification is to be strictly interpreted. In case of any ambiguity the benefit must be in favour of Revenue. He further relying on the ruling of Division bench of this Tribunal in New Look Cosmetic Laser Centre vs. Commissioner of Customs (I), Mumbai -2006 (200) ELT 336 (Tri. Mum.) wherein the issue of classification of Suby Star Surgical Laser was an issue for the purpose of benefit of Notification No. 20/90-Cus. 13. Having considered the rival contentions we observe that the taxability of service in dispute provided by the appellant assessee depends, whether the same is predominantly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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