9911796707
Advanced Search 
TMI Blog2020 (6) TMI 800X X X X Extracts X X X X X X X X Extracts X X X X ..... to 30.06.2020, "where arty time limit for completion or compliance of any action, by any authority or by any person, has been specified in, or prescribed or notified under the said Act, which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action, shall be extended upto the 30th day of June, 2020." I. BRIEF FACTS OF THE CASE M/s Siemens Healthcare Pvt. Ltd, Plot No. 78, JIL Building, Sector 18, Gurugram (hereinafter, "the Appellant") has been, historically, in the business of trading medical equipment required to spread its business dimension by involving itself in the provision of diagnostic imaging services to hospitals (customers) and other clinical establishments for various Haryanais registered as a State taxpayer under GST in Gurugram. They are engaged in selling, establishing and maintaining the medical diagnostic/imaging equipment at the premises of their clients viz. hospitals and other clinical establishments. 1. As submitted by the applicant, such diagnostic imaging services would involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... correct imaging coil, the best Position and the protocol for the imaging; (iv) Operating equipment optimally to get accurate diagnostic images; (v) Communicating with physicians/ radiologist about images; (vi) Delivering/ handing over the acquired images to the Picture Archiving and Communication System ('PACS'), The application for advance ruling has been filed as the taxpayer intends to also deploy their professionals to run such machines in the hospitals, while maintaining these machines also. II. QUESTIONS IN ADVANCE RULING: The RULING has been requested on the QUESTION:- "Whether the provisioning of diagnostic imaging services under the agreement/contract executed by Siemens Healthcare Pvt. Ltd. (SHPL) with its customers would qualify for exemption from levy of GST under S. No. 74 of the Notification 12/2017-CT(R) dated 28/06/2017?" The Advance Ruling Authority (AAR) had provided the following Ruling: - RULING: "The services offered/ provided by the applicant do not qualify to be covered under the scope of exemption provided under entry at Sr. No. 74 of the Notification No. 12/2017-Central Tax (Rate) dated 28th June, 2017 and hence, these are not exempted". III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s' provided by National Cancer Institute, is as under:- "The process of identifying a disease, condition, or injury from its signs and symptoms. A health history, physical exam, and tests, such as blood tests, imaging tests, and biopsies, may be used to help make a diagnosis." That, dictionary meaning of the term "Diagnosis" is provided below:- ''The act or process of discovering or identify a diseased condition by means of a medical examination, laboratory test, etc." (Collinsdictionary.com) "Investigation or analysis of the cause or nature of a condition, situation, or problem" (merriam-webster.com) Further, in common parlance, diagnosis includes following components (source: Wikipedia.com):- "Complementing the already given information with further data gathering, which may include questions of the medical history (potentially from other people close to the patient as well), physical examination and various diagnostic tests;" "A diagnostic test is any kind of medical test performed to aid in the diagnosis or detection of disease. Diagnostic tests can also be used to provide prognostic information on people with established disease." There are many judicial precedent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vessels. The cross-sectional images generated during a CT scan can be reformatted in multiple planes, and can even generate three-dimensional images which can be viewed on a computer monitor, printed on film or transferred to electronic media; c. X-Ray/ Mammography: Radiography is an imaging technique using X-rays to view the internal form of an object. This is the oldest and most common imaging technology and most of us have experienced this. Mammography is an advanced X-Ray picture of the breast, often using 3D reconstruction. It is used to check for breast cancer in women who have no signs or symptoms of the disease (screening). It can also be used if you have a lump or other sign of breast cancer (diagnosis). d. PET-CT: Positron emission tomography - computed tomography (better known as PET-CT or PET/CT) is a nuclear medicine technique which combines a positron emission tomography (PET) scanner and a computed tomography (CT) scanner to acquire sequential images from both devices in the same session, which are combined into a single superposed (co-registered) image. It is very useful in combining structural data and functional imaging etc. Irrespective of the technology ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns) of interior of body through a medical imaging or radiology equipment to assess the current medical condition of the patients for clinical analysis and medical interventions unequivocally falls within the ambit of the term "by way of diagnosis" for the purpose of the Notification. 6. Whether 'input services' for a hospital are entitled for the exemption? At the outset, it is submitted that the AAR, Haryana in its impugned order has not disputed that the Appellant would work as an independent entity at the customer's premises and provide the diagnostic imaging services falling under SAC 9993 (i.e. human health and social care services). Such healthcare services provided by the Appellant are its output supply. Therefore, once such factum of providing healthcare services by the Appellant to its customers under SAC 9993 was not disputed, the benefit of exemption should not have been denied on the ground that such services are in the nature of 'input services' for further supply of healthcare services by hospitals. If the AAR Haryana's finding that any services in the nature of input services for hospital would not be entitled for the exemption under the Exemption Notification is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low:- "As the words and phrases - Permanent Edition, Vol. ii, p-111 would show that 'by way of' may be taken to mean 'as for the purpose of 'in character of, 'as being' and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, 'by way of a license for their corporate Franchise. The illustration given should show that in fact the payment of license fee, is not a tax, but it is so considered to be by way of tax." In this respect the AAR, Haryana has failed to consider that judicial principles and rules of interpretation can be applied universally in all cases irrespective of the issue under challenge. Further, in the aforesaid judgment the Hon'ble Supreme Court has held that substitution of the word "amendment" by the expression 'amend by way of addition, variation or repeal' makes no difference as it bears the same meaning as the word "amendment". In view of the above, it is evident that the Hon'ble Supreme Court has used the term 'by way of to include everything which relates to the word 'amendment'. Therefore, the same principle is applicable in the case of the Appellant as well wherein healthcare service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Column 2 of the table to the Exemption Notification. However, Column 2 mentions SAC 9993 and Column 3 starts with the phrase services 'by way of which clearly means that the intention of the legislature was to further expand the scope of the exemption entry. It is a settled principle of law that exemption Notification should be interpreted harmoniously to give full effect to the legislative intent behind introducing the same. 9. Reference is drawn to the decision of Supreme Court in the case of Tata oil Mills Co. Ltd. Vs Collector of Central Excise on 14 August, 1989,1990 AIR 27, 1989 SCR (3) 839, Wherein it has been held that in trying to understand the language used by an exemption notification, one should keep in mind two important aspects: * the object and purpose of the exemption and, * the nature of the actual process involved in the manufacture of the commodity in relation to which exemption is granted. In the instant case, it is beyond any shadow of doubt that the legislative intent behind exempting the diagnostic and investigative services was to ensure that quality healthcare services are made available to masses at affordable prices. As explained in detail abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication No. 12/2017- CT (Rate) dated 28.06.2017 as amended refers). Services provided by senior doctors/ consultants/ technicians hired by the hospitals, whether employees or not, are healthcare services which are exempt." Basis the above clarification, it can be construed that services of technicians/ consultants to the hospitals, for further provision of services to the patients by the hospitals, shall be construed as provision of healthcare service by the third parties and shall qualify for the exemption. Given this, services so rendered by the Appellant being in the nature of the services of a technician/ consultant to its customers (i.e., hospitals} squarely fall within the scope of aforesaid clarification and are qualified for the exemption. 10. The AAR Haryana has erred in not passing the order with in e stipulated time period under the GST law It is submitted that as per Section 98(6) of the CGST Act, the AAR is required to pronounce an advance ruling within 90 days from the date of receipt of the application for advance ruling. However, in the present case, the AAR, Haryana has failed to pass the ruling within the stipulated time period provided under the GST law. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been made after the expiry of the prescribed four years period." Basis the above, it can be construed that due to such inordinate delay in serving the ruling on the Appellant, the AAR, Haryana had not passed the ruling on the date it purported to have been made. Given the above, the ruling of the AAR, Haryana is ought to be set aside and the appeal of the appellant must be allowed. IV. RECORD OF PERSONAL HEARING Shri Gajendra Maheshwari, Advocate, Attended the personal hearing on 25-08-2021 through video conference on behalf of the Appellant and emphasized on all the points already made in the Appeal. Shri Maheshwari further submitted that the CBIC's Circular No.32/6/2018-GST dated 12.02.2018 has amply clarified the matter and the exemption is admissible to technicians independently, without any contract of such persons with the patient. That, accordingly, the exemption would be admissible to the services intended to be provided by them. V. DISCUSSION AND FINDINGS 1. The exemption has been claimed by the Appellant in their Application for Advance Ruling and in the present Appeal in terms of Notification 11/2017 -Central Tax (Rate) dated 28.06.2017. The relevant entry 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue take a stand that they are providing services to hospitals and not to patients and hence must pay GST? Health care services provided by a clinical establishment, an authorised medical practitioner or para-medics are exempt. [SI.No. 74 of notification No. 12/2017-CT (Rate) dated 28.06.2017 as amended refers]. (1) Services provided by senior doctors/ consultants/ technicians hired by the hospitals, whether employees or not, are healthcare services which are exempt. (2) Retention money: Hospitals charge the patients, say, Rs. 10000/-and pay to the consultants/ technicians only Rs. 7500/- and keep the balance for providing ancillary services which include nursing care, infrastructure facilities, paramedic care, emergency services, checking of temperature, weight, blood pressure etc. Will GST be applicable on such money retained by the hospitals? (2) Healthcare services have been defined to mean any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India [para 2(zg) of notification No. 12/2017- CT(Rate)]. Therefore, hospitals also provide healthcare services. The entire amount c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ics or Ambulance Operators. Clearly, the case of Appellant M/s. Siemens Healthcare Pvt. Ltd. (SHPL) is not covered under ambulance services. Now, the question arises whether the Appellant's services meet the dual criteria of a. being health care services; and also b. whether provided as a clinical establishment. Obviously the services under examination are not to be provided by the Appellant as Authorised Medical Practitioner' or as 'Para Medics'. Health care services have been defined in the Notification as:- "health care services" means any service by way of diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India and includes services by way of transportation of the patient to and from a clinical establishment, but does not include hair transplant or cosmetic or plastic surgery, except when undertaken to restore or to reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma; This definition explains the Board's ibid circular where despite the Doctors' services being actually of support services to the Hospitals, are exempt since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exempt as per the clarification cited by the CBIC's circular. 6. It is observed that SHPL is providing the input services of provision of installing/operating the MRI, CT scanners etc in the premises of its Customers (clinical establishments) and providing diagnostic images to them (clinical establishments). Clinical Establishment has been defined in the Notification as:- "clinical establishment" means a hospital, nursing home, clinic, sanatorium or any other institution by, whatever name called, that offers services or facilities requiring diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services of diseases." Thus, for an establishment to be covered under the definition of 'clinical establishment' it has to,- - offer services or facilities in any recognised system of medicines in India, (for those) requiring diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy. OR, it is a - place established as an independent entity or a part of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
