TMI Blog2023 (8) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... t it specifically excludes hair transplant or cosmetic or plastic surgery except when the same is undertaken to restore or reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma. It is pertinent to take cognizance of the clarification issued by TRU when the service tax was initially levied on cosmetic and plastic surgery. It is noted that the term surgery has been defined in medical technology as consisting of physical intervention on tissues. As a general rule it has defined surgery to involve cutting of patient s tissues or closure of previously sustained wound. It also includes non-invasive surgery.Non-invasive surgery procedures leave the skin intact or unbroken, meaning it does not require an incision or cutting of the skin. Rather it is usually performed by laser or using syringes. Autologous micrograph treatment is used to treat male and female pattern baldness. This treatment involves the extraction of unspecialised cell from one s body that maintain and repair tissues. Skin micrographs are taken from behind the year with the help of a biopsy punch and a stem cell - like rich solution is made out of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depends upon the size of lesion. Warts, known in medical terminology as papillomas, may emerge anywhere on the body, depending on the specific strain of the virus (known as Human papillomavirus or HPV) that causes them to develop in the body. Viral warts are infectious to the patient and others. Moles are a common type of skin growth, and often appear as small, dark brown spots and are caused by clusters of pigment-forming cells (melanocytes). Freckles are small spots on the skin that range in colour from red to brown, and are commonly seen on sun-exposed areas, such as face, neck, etc. All these common skin conditions are not usually life threatening, and any procedure to remove such warts/moles or freckles is undertaken to enhance physical appearance or beauty. Therefore, their removal would clearly fall under the category of a cosmetic surgery. Time Limitation - HELD THAT:- It is clear that the two treatments were not in the knowledge of the Department. It is evident from the fact that the Commissioner has dropped the demand of Rs. 2,39,00438/- on other services viz., Alopecia Injection, Hairloss therapy, Mesotherapy, Platelet Rich Plasma etc on the ground that these were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant is engaged in providing services relating to diagnosis, treatment and care for various hair and skin related diseases/illness, through its team of qualified doctors and paramedics. A Show cause notice dated 26.06.2020 was issued raising demand of service tax amounting to Rs.2,94,88,580/-, with interest, for seven different services provided by the appellant, alleging that the benefit of exemption under Sr. No. 2(i) of Notification No. 25/2012-ST dated 20.06.2012, as amended (hereinafter referred to as the Notification ), is not admissible. By the impugned order, the demand of service tax amounting to Rs. 55,88,412/- has been confirmed, with interest, denying the benefit of exemption under the Notification in respect of two services only, viz. (i) Autologus Micrograft Treatment (ii) Radio Frequency Treatment and penalty, as stated above, has been imposed. The demand in respect of the remaining five services has been dropped on the ground of limitation. Though the appellant is not agreeable to the findings of the learned Principal Commissioner holding these five services to be covered under the category of cosmetic or plastic surgery, thus, ineligible for the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surgical treatment and the finding of the learned Principal Commissioner in the impugned order holding it to be a type of surgery and consequent denial of the benefit of Notification is unsustainable. 5. Learned counsel further submitted that the Autologus Micrograft Treatment is used to treat the disease Androgenetic Alopecia and Telogen Effluvium, both male and female pattern baldness. This treatment is provided under the guidance of Doctors and Dermatologists to avoid the risk factor of other diseases like prostate cancer, disorders of insulin resistance (such as diabetes and obesity), and high blood pressure. In the following cases, loss of hair/baldness (Alopecia) has been held to be a hair related illness/disease: (i) Puma Ayurvedic Herbal (P) Ltd. Vs. CCE, Nagpur [2006 (196) ELT 3 (SC)] 1; (ii) Himani Ltd. Vs. CCE, Lucknow [2011 (263) ELT 225 (All.)] ; (iii) CCE, Cochin Vs. Ashok Herbal Remedies (India) [2004 (168) ELT 482 (Tri.-Bang.)] ; (iv) Aswini Homeao Pharmacy Vs. CCE ST, Hyderabad-IV [2019 (367) ELT 478 (Tri.-Hyd.)] ., affirmed by the Hon ble Supreme Court in CCE ST, Hyderabad Vs. Ashwani Homeo Pharmacy [2023-TIOL-50 SC-CX] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that go through different biological stages from an active growth stage (anagen phase), to an intermediate remodelling stage (catagen phase),and then to a quiescent stage (telogen phase). The manner of development of the disease of androgenetic alopecia is characterized by a shortening of the anagen phase and an increase in the amount of hair follicles that remain in the telogen phase. Since the anagen phase determines hair s length, the new hair in AGA is shorter, gradually minimizing hair follicles until they disappear.As per Wikipedia, the Autologous stem-cell transplantation (also called autogenous, autogenic, or autogenic stem-cell transplantation and abbreviated auto-SCT) is autologous transplantation of stem cells, i.e. transplantation in which stem cells (undifferentiated cells from which other cell types develop) are removed from a person, stored, and later given back to that same person. In view of the same, he submitted that the activity of Autologus Micrograft Treatment is a type of surgery which involves the physical intervention on tissues which comes under the definition of cosmetic surgery and plastic surgery as the same is done to enhance physical appearance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, or a place established as an independent entity or a part of an establishment to carry out diagnostic or investigative services of diseases; (t) 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; 3. This notification shall come into force on the 1st day of July, 2012. 12.1 It will pertinent to reproduce the content of the letter issued by TRU consequent to the introduction of the Finance (No.2) Bill, 2009 wherein new services were included in the list of taxable services. The relevant portion is reproduced hereinafter:- Government of India Ministry of Finance Department of Revenue Tax Research Unit ***** Gautam Bhattacharya Joint Secretary (TRU-II) Tel; 230 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. 12.2 A conjoint reading of the notification reveals that the exemption is for healthcare services provided by a clinical establishment and authorised medical practitioner or paramedics. Healthcare services is a service whereby the diagnosis or treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicines in India and include services by way of transportation of the patient to and from a clinical establishment. But it specifically excludes hair transplant or cosmetic or plastic surgery except when the same is undertaken to restore or reconstruct anatomy or functions of body affected due to congenital defects, developmental abnormalities, injury or trauma. It is pertinent to take cognizance of the clarification issued by TRU when the service tax was initially levied on cosmetic and plastic surgery. It is noted that the term surgery has been defined in medical technology as consisting of physical intervention on tissues. As a general rule it has defined surgery to involve cutting of patient s tissues or closure of previously sustained wound. It also includes non-invasive surgery.Non-invasive surgery procedures leave the skin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e meant to improve appearance of a person, that is the enhance beauty. Whereas a medicinal product or a medicament is meant to treat some medical condition. It may happen that while treating a particular medical problem, after the problem is cured, the appearance of the person concerned may improve. What is to be seen as the primary use of the product. To illustrate, a particular eye with the product may be used for treating baldness. Baldness is a medical problem. By use of the product if a person is able to grow hair on his head, his ailment of baldness is cured and the persons appearance may improve product used for the purpose cannot be termed as cosmetic simply because it has ultimately led to the improvement in appearance of the person. The primary role of the product was grow hair on his head and cure his baldness. 21. The extent of the quantity of medicament used in a particular product will also not be relevant factor. Normally the extent of use of medicinal ingredients is very low because a larger use may be harmful for the human body. The medical ingredients are mixed with what is in trade parlance called fillers or vehicles in order to make the medicament useful t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is eligible for exemption under Notification 25/2012(supra). 14. We now address the second issue before us as to whether Radio Frequency Treatment is a cosmetic surgery or not. The Radio Frequency process is a non-surgical chemical cautery or with electro cautery, which is used to eliminate Warts, Moles and Freckles with no side effects or scarring. It is painless and the number of sittings depends upon the size of lesion. Warts, known in medical terminology as papillomas, may emerge anywhere on the body, depending on the specific strain of the virus (known as Human papillomavirus or HPV) that causes them to develop in the body. Viral warts are infectious to the patient and others. Moles are a common type of skin growth, and often appear as small, dark brown spots and are caused by clusters of pigment-forming cells (melanocytes). Freckles are small spots on the skin that range in colour from red to brown, and are commonly seen on sun-exposed areas, such as face, neck, etc. All these common skin conditions are not usually life threatening, and any procedure to remove such warts/moles or freckles is undertaken to enhance physical appearance or beauty. Therefore, their removal ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
