TMI Blog2019 (1) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... nd others [2017 (12) TMI 509 - CESTAT NEW DELHI], where it was held that There is no legal justification to tax the share of clinical establishment on the ground that they have supported the commerce or business of doctors by providing infrastructure - demand set aside - appeal allowed - decided in favor of appellant. - Service Tax Appeal No. 52380 of 2016 - Final Order No. 53505/2018 - Dated:- 19-12-2018 - Shri C.L. Mahar, Member (Technical) And Ms. Rachna Gupta, Member (Judicial) S/Shri Manish Gaur and Narender Singhvi, Advocate for the appellant. Shri Sanjay Jain, Authorized Representative (DR) for the Respondent. ORDER Per. C.L. Mahar :- The brief facts of the matter are that the appellant are an est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toed the order of original Adjudicating Authority. The appellants are before us against the impugned order-in-appeal. 2. We have heard both the sides and we feel that the matter is no longer res-integra as this Tribunal in its final order No. ST/A/58226-58232/2017 dated 6 th December 2017 in the case of M/s Sir Ganga Ram Hospital and others vs. CCE, Delhi I and others has held as under :- 4. We have heard both the sides and perused the appeal records. We have also perused specifically the terms of some of the agreements on record. The dispute in the present appeals is with reference to the tax liability of the appellant hospitals under the category of business support services. The statutory provision for the said tax entry is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntment of consultants to provide services to the patients who will visit or admitted in the appellants hospital. The doctors will receive a percentage of share of the collection from the patients in case of consultation, procedures and surgeries done by them. In some cases, there is a provision for treating patients from low economic background without any financial benefits. On careful consideration of various terms and conditions and the scope of arrangement, we are of the considered view that such arrangement are for joint benefit of both the parties with shared obligations, responsibilities and benefits. The agreements do not specify the specific nature or list of facilities which can be categorized as infrastructural support to the doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spital premises. The appellant hospital also manages the follow-up procedures and provide for further health service in the manner as required by the patients. As can be seen that the appellants hospitals are actually availing the professional services of the doctors for providing health care service. For this, they are paying the doctors. The retained money out of the amount charged from the patients is necessarily also for such health care services. The patient paid the full amount to the appellant hospitals and received health care services. For providing such services, the appellants entered into an agreement, as discussed above, with various consulting doctors. We do not find any business support services in such arrangement. 7. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction or sale of commodities ...a professional activity must be an activity carried on by an individual by his personal skill and intelligence and unless the profession carried on by (a person) also partakes of the character of a commercial nature the professional activity cannot be said to be an activity of a commercial character. 8. Applying the above ratio and examining the scope of the tax entry for BSS, we are of the considered view that there is no taxable activity identifiable in the present arrangement for tax liability of the appellant hospitals. 9. Under negative list regime w.e.f. 1-7-2012, the health care services are exempt from service tax. Earlier the health care services were only taxed for specified category of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unctions of both affected due to congenial defects, developmental abnormalities, injury or trauma. 11. These two provisions available in Notification No. 25/2012 will show that a clinical establishment providing health care services are exempted from service tax. The view of the Revenue that in spite of such exemption available to health care services, a part of the consideration received for such health care services from the patients shall be taxed as business support service/taxable service is not tenable. In effect this will defeat the exemption provided to the health care services by clinical establishments. Admittedly, the health care services are provided by the clinical establishments by engaging consultant doctors in terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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