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2024 (5) TMI 370 - CESTAT ALLAHABADEligibility for deduction of cost of medicines incurred for providing health services - N/N. 12/2003-ST dated 20.06.2003 - HELD THAT:- The decision of larger bench relied upon by the Commissioner (Appeals) in the case of M/s Aggarwal Colour Advance Photo System has been set aside by the Hon’ble Madhya Pradesh High Court vide its order dated 13.03.2020 [2020 (4) TMI 799 - MADHYA PRADESH HIGH COURT] where it was held that 'in goods, the tax on such sale or purchase of goods is leviable. In this view of the matter, after the 46th Amendment, there is no question of dominant nature test applying in photography service and the works contract, which is covered by Clause (29A) of Article 366 of the Constitution where the element of goods can be separated, such contracts can be subjected to sales tax by the States under Entry 54 of List II of Schedule II. Once that is so, value of photographic paper and consumables cannot be included in the value of photography service for the purposes of imposition of service tax.' From the decision of Hon’ble High Court it is quite evident that the benefit of exemption under Notification No 12/2003-ST cannot be denied just for the reason that the value of goods consumed in providing the taxable services is not separately indicated in the invoice, or no separate invoice for the sale of such goods have been made. The appellant hospital admittedly consuming the medicines and other consumables for providing the health services to its client. The only reason recorded in the impugned order for denying the said benefit is non production of sale bills showing sale of the medicines which were actually consumed in providing the health services. Commissioner (Appeal) has based his order on decision of larger bench of tribunal referred above. However as this decision has been set aside by the Hon’ble High Court reliance placed on the said decision cannot be upheld. The he impugned order is set aside, Order-in-Original passed by Deputy Commissioner has been restored - appeal allowed.
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