TMI Blog2023 (5) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... es - the service tax demand cannot be fastened on the appellants. On looking at another angle, it cannot be said that the appellants hospital is the recipient of service provided by the doctors inasmuch as the appellants actually availed the professional services of the doctors, for which they pay certain amount from the payment received from the patients. Hence, as a recipient of service, the liability to pay service tax cannot be fastened on the appellant. Furthermore, it is not the case of Revenue that the patients treated in the appellants hospital are having contractual relationship with the doctors and that the doctors raised the professional bills on them - the appellants are providing business support service to the doctors. There are no merits in the impugned orders, insofar as the activities of the appellants were treated as taxable service and consequently, the adjudged demands were confirmed. Further, there was no scope or occasion on the part of the adjudicating authority to rely upon or interpret the ratio of the judgments relied upon by the appellants in this case inasmuch as the impugned order was passed in the month of June 2016 - appeal allowed. - Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able service. In the present case, five numbers of periodic SCNs were issued to the appellants, for confirming service tax demand of Rs.2,56,46,932/- for the period from 01.10.2006 to 31.03.2014. The said SCNs were adjudicated by the learned Commissioner of Service Tax vide the impugned order, in confirming the proposals made therein. Feeling aggrieved with the impugned order, the appellants have preferred these appeals before the Tribunal. 2. Learned Advocate appearing for the appellants submitted that the issue arising out of the present dispute is no more res integra, in view of the following judgments delivered by the judicial forums. Thus, he contended that the adjudged demands cannot be confirmed on the appellants. [i] M/s. National Health and Education Society Others Vs. Commissioner of Service Tax-III- 2019-TIOL-1575-CESTAT-MUM [ii] M/s. Sir Ganga Ram Hospital Others Vs. Commissioner of Central Excise, Delhi-I -2018-TIOL-352-CESTAT-DEL [iii] M/s. Sir Ganga Ram Hospital Others Vs. Commissioner of Service Tax, Delhi-I -2020-TIOL-1603-CESTAT-DEL [iv] M/s. Apollo Hospitals Vs. Commissioner of Central Excise, Raipur 2018-TIOL-2174-CESTAT-DEL [v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entical case and recorded the following observations: 6. The proceedings by the Revenue, initiated against the appellant hospitals, are mainly on the inference drawn to the effect that the retained amount by the hospitals out of total charges collected from the patients should be considered as an amount for providing the infrastructure like room and certain other secretarial facilities to the doctors to attend to their work in the appellants hospitals. We find this is only an inference and not coming out manifestly from the terms of the agreement. Here, it is very relevant to note that the appellant hospitals are engaged in providing health care services. This can be done by appointing the required professionals directly as employees. The same can also be done by having contractual arrangements like the present ones. In such arrangement, the doctors of required qualification are engaged/contractually appointed to provide health care services. It is a mutually beneficial arrangement. There is a revenue sharing model. The doctor is attending to the patient for treatment using his professional skill and knowledge. The appellants hospitals are managing the patients from the time t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale or arrangements for the production 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. 01.07.2012, the health care services are exempt from service tax. Earlier the health care services were only taxed for specified category of hospitals and for specified patients during the period 01.07.2010 to 01.05.2011. With effect from 01.05.2011, health care services were exempt from service tax under Notification No.30/2011 ST. After introduction of negative list tax regime, Notification No. 25/2011-ST exempted levy of service tax on health care services rendered by clinical establishments. We have examined the scope of the terms clinical es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taxable service and consequently, the adjudged demands were confirmed. Further, we find that there was no scope or occasion on the part of the adjudicating authority to rely upon or interpret the ratio of the judgments relied upon by the appellants in this case inasmuch as the impugned order was passed in the month of June 2016; whereas, those relied upon judgements were delivered much after the date of passing of the present impugned order. Further, we also find that by placing reliance on the above judgments, the learned Joint Commissioner of CGST CX., Mumbai East Commissionerate vide order dated 31.05.2022 has dropped the show cause proceedings initiated against the same appellants for the subsequent periods 2015-16 and 2016-17. The said order dated 31.05.2022 was accepted by Revenue and no appeal was preferred before the appellate forum. For deciding such aspect of non-filing of appeal, the reviewing authority has relied upon the judgment in the case of Ganga Ram Hospital (supra). 6. In view of the foregoing discussions, we do not find any substance in the impugned order insofar as it has confirmed the adjudged demands on the appellants. Therefore, the impugned order is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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