2023 (12) TMI 953 - CESTAT AHMEDABAD

Levy of service tax - amount retained by the appellant from fees of the Doctor on account of infrastructure support to the doctor - non compliance of the procedure of Rule 6(3A) can lead to a demand under Rule 6(3) despite the fact the appellant have reversed the amount in terms of Rule 6(3A) of Cenvat Credit Rules or not - extended period of limitation.

Whether the appellant is liable to pay service tax on the amount retained from the fees received on behalf of the doctors for treatment of patient? - HELD THAT:- This issue is no longer res-integra as in the various judgments, it has been held that the part of the amount of doctor’s fees retained by the respondent towards infrastructure support is not liable to payment of service tax - reliance can be placed in M/S SIR GANGA RAM HOSPITAL VERSUS COMMISSIONER OF SERVICE TAX, NEW DELHI [2020 (11) TMI 536 - CESTAT NEW DELHI] and M/S SIR GANGA RAM HOSPITAL, BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE, APPOLLO HOSPITALS, M/S MAX HEALTH CARE INSTITUTE LTD VERSUS CCE DELHI-I, CCE&ST INDORE, CCE&ST RAIPUR, CST NEW DELHI AND CST DELHI VERSUS M/S INDRAPRASTHA MEDICAL CORPORATION LTD [2017 (12) TMI 509 - CESTAT NEW DELHI] - thus, the issue is settled in favour of the assessee, therefore, demand on this count is not sustainable.

Whether demand of cenvat credit is sustainable under Rule 6(3) on the ground that the appellant have not followed the procedure such as intimation to opt for Rule 6(3A) was not given? - HELD THAT:- There is no dispute that the appellant have correctly paid the amount as required under Rule 6(3A) of Cenvat Credit Rules, 2004. The only lapse on the part of the appellant is that they have not given intimation to the department for opting of this option - merely for a procedural lapse when the amount was correctly paid under Rule 6(3A), no demand is sustainable - reliance can be placed in M/S. CRANES & STRUCTURAL ENGINEERS VERSUS COMMISSIONER OF CENTRAL EXCISE [2016 (8) TMI 387 - CESTAT BANGALORE] - it is settled that once the amount prescribed under Rule 6(3A) was paid by the appellant, no further demand is sustainable. Hence, the demand on this count is also not sustainable.

As regard the issue raised on limitation, since the entire case has been decided on its merit, the aspect of limitation not taken up and the same is left open.

The demand is not sustainable, hence, the impugned order is set aside - Appeal allowed.