TMI Blog2019 (5) TMI 260X X X X Extracts X X X X X X X X Extracts X X X X ..... 27/2014-DB - Final Order No. 20356/2019 - Dated:- 2-4-2019 - MR. S.S GARG, JUDICIAL MEMBER And MR. V. PADMANABHAN, TECHNICAL MEMBER Shri Jose Jacob, Advocate For the Appellant Dr. J. Harish, Jt. Commissioner (AR) For the Respondent ORDER Per: S.S GARG The present appeal is directed against the impugned order dt. 25/06/2014 passed by the Commissioner(Appeals) whereby the Commissioner(Appeals) has confirmed the demand of service tax of ₹ 37,09,108/-, education cess of ₹ 66,564/- and secondary higher education cess of ₹ 7,035/- for the period 01/10/2002 to 31/12/2007 under Section 73(2) of the Finance Act, 1994 and also levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity vide Order-in-Original dt. 13/03/2009 confirmed the demand of service tax of ₹ 37,09,108/- along with interest and penalties. Aggrieved by the said order, appellant filed appeal before the Commissioner(Appeals) who rejected the appeal except for setting aside penalty under Section 76 of the Finance Act, 1994. 3. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the evidence on record. He further submitted that the various services offered by Ayurmana would fall within the meaning of therapeutic massage and hence are not liable to service tax. He further submitted that for providing for various ayurved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal should be allowed and impugned order should be set aside. 4. On the other hand, the learned AR defended the impugned order and submitted that the resort of the appellant is only for pleasure and holidaying and massages are optional and invariably are only for physical well being and not for curing any major ailments. 5. After considering the submissions of both the parties, we find that the massages offered by the appellant fall in the category of therapeutic and are not liable to pay service tax. Further we find that the massages are provided under the medical supervision of the trained doctors and proper record regarding the treatment is maintained by the appellant. We also find that the appellant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviding health and fitness service. 3. Health and fitness services are provided by clubs, fitness centers, health saloons, hotels, gymnasium and massage centers. The services which fall under this category might be for weight reduction and slimming, physical fitness exercise, gyms, aerobics, yoga, meditation, reiki, sauna and steam bath, Turkish bath, sun bath and massage for general well being. However therapeutic massage does not come in the ambit of taxable service. Therapeutic massage basically means a massage provided by qualified professionals under medical supervision for curing diseases such as arthritis, chronic low back pain and sciatica etc. Ayurvedic massages, acupressure therapy, etc. given by qualified professionals under medi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Medical Officer of Kerala Government have certified that the ayurvedic kriyas (procedures) imparted by the respondents are based on ayurvedic method of treatment which is a system of medicine approved by Central Government of Indian Systems of Medicine. From the huge bunch of reports containing patient symptoms or diagnostic report and frequency and duration of treatment, prescription, it is seen that the duration is one week to four weeks and in some cases, patients return back for a repeat of the treatment; specific ailments mentioned in the Order-in-Original like back pain, shoulder pain, knee pain, frozen shoulder, blood pressure, blood circulation problems, etc. have been cured successfully as per the certificates of the patients. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atment and the ambience of the treatment would render such treatments to be non-therapeutic and only for well-being. For that matter, the duration of treatment is also no criteria. In case of consultations by psychiatrists, the sessions may last even one day, for that reason one cannot conclude that the psychiatrists ceases to be a doctor. The duration and the type of treatment depends on the diseases, the conditions of the patient, and the expertise of the doctor. It is not always necessary that the treatment should be only in the dull / dreary atmosphere of hospitals alone. If some well to do patients prefer to have treatment in a better circumstances and are willing to pay for the same, such treatments cannot be for that sole reason , h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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