TMI Blog2023 (4) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant should pay the balance amount and pay the interest on the entire Service Tax amount along with equal amount of penalty. Business Support Service - reverse charge mechanism - HELD THAT:- The Appellant is not in a position to provide any documentary evidence to the effect that the service provided by them was liable for Service Tax by their client on Reverse Charge Mechanism basis. Therefore, the confirmed demand of Rs.1,27,308/- along with interest and penalty thereon stands confirmed and their Appeal stands rejected to this extent. Cosmetic/ plastic surgery - HELD THAT:- The issue is no more res integra and this issue is squarely covered by the decision of the Delhi Bench in the case of M/S. MOHAK HI TECH SPECIALITY HOSP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the following confirmed demands. (i) Cosmetic or Plastic Surgery (as per Show Cause Notice) / Bariatric Surgery (as per the Appellant): Year Service Income as per Balance Sheet Service Income as per ST-3 Return Rate of S. Tax Service Tax payable S. Tax paid as per ST-3 Return Differential S. Tax (in Rs.) 2011-12 2,26,49,443 16,27,183 10.30% 23,32,893 1,67,600 21,65,293 2012-13 5,28,38,477 18,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014-15 0 0 12.36% 0 0 0 Total 2,50,000 0 26,574 0 26,574 (iii) Business Support Service : Year Service Income as per Balance Sheet Service Income as per ST-3 Return Rate of S. Tax Service Tax payable S. Tax paid as per ST-3 Return Differential S. Tax (in Rs.) 2011-12 0 0 10.30% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2,22,78,812/-, he submits that the Appellant has undertaken bariatric surgeries for various patients during the period under consideration. The Department does not dispute the fact that the surgeries performed by them is on account of bariatric surgeries only as can be seen from the SCN and OIO. He draws attention to various technicalities involved in surgeries which prove that the bariatric surgeries are gastrointestinal non-cosmetic surgical procedures that reduce the risk of health conditions like diabetes, hypertension etc. These procedures are not performed to enhance a person s cosmetic appearance and these procedures are internationally accepted as metabolic surgeries and are not classified as plastic surgeries as alleged by the Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the invoices were clearly showing the amount collected was inclusive of Service Tax, this submission cannot be accepted. We hold that they are required to pay Service Tax on the full value of Rs.2,50,000/- received by them. The Department should verify the already paid amount and the Appellant should pay the balance amount and pay the interest on the entire Service Tax amount along with equal amount of penalty. 8. In respect of confirmed demand of Rs.1,27,308/-, the Appellant is not in a position to provide any documentary evidence to the effect that the service provided by them was liable for Service Tax by their client on Reverse Charge Mechanism basis. Therefore, the confirmed demand of Rs.1,27,308/- along with interest and penal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot open to the Department to now contend that bariatric surgery is cosmetic surgery or plastic surgery. The confirmation of demand in the impugned order for this reason cannot be sustained . 42. In coming to this conclusion, reliance can be placed on the decision of the Tribunal in Shri Niraj Prasad vs. Commissioner of Central Excise and Service Tax, Kanpur. A similar issue had arisen for consideration. In one matter, the demand of service tax under business auxiliary service by a similarly situated assessee had been set aside by the Commissioner and that order had attained finality. The Division Bench of the Tribunal held that when the Department had permitted that order to attain finality, it cannot be permitted to urge in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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