Outsourced hospital food supply remains separately taxable, while unsupported fraud allegations require ordinary-demand treatment and cum-tax valuation.
Outsourced caterers supplying food independently to hospitals make a separately taxable food supply, not a composite healthcare supply, even where the food is consumed by in-patients. Composite-supply treatment may apply to the hospital's healthcare package but does not extend to an independent supplier. Fraud, wilful misstatement, or suppression with intent to evade tax must be established before the extended-demand mechanism applies; mistaken reliance on a circular without mala fides requires ordinary-demand treatment. Where invoices contain no separately identifiable tax and no tax was collected additionally, invoice values are treated as tax-inclusive and tax is recomputed under Rule 35 after verification.
Issues: (i) Whether contracted supply of food by an outsourced caterer to a hospital for in-patients is a composite supply of healthcare services exempt from separate GST; (ii) Whether the notice under Section 74(1) may be sustained where fraud, wilful misstatement, or suppression with intent to evade tax is not established; (iii) Whether invoice values that did not separately charge tax must be treated as cum-tax values under Rule 35 in computing tax.
Issue (i): Whether contracted supply of food by an outsourced caterer to a hospital for in-patients is a composite supply of healthcare services exempt from separate GST.
Analysis: A composite supply under Section 2(30) requires two or more taxable supplies that are naturally bundled and supplied together, with one being the principal supply. The caterer made only one supply under its agreement, namely food to the hospital. Healthcare treatment and the dietary food supplied to admitted patients may form a composite supply in the hands of the hospital as healthcare provider, but the circular does not extend that treatment to an independent outsourced food supplier.
Conclusion: The outsourced caterer's supply of food to the hospital for consumption by in-patients is not a composite supply of healthcare services and is separately taxable, in favour of Revenue.
Issue (ii): Whether the notice under Section 74(1) may be sustained where fraud, wilful misstatement, or suppression with intent to evade tax is not established.
Analysis: Invocation of Section 74(1) requires the requisite elements of fraud, wilful misstatement, or suppression with intent to evade tax to be established. A mistaken reliance on the circular, coupled with the absence of separately charged tax and the dropping of the proposed penalty under Section 122, did not establish mala fides. Section 75(2) permits the notice to be treated as one issued under Section 73(1) where the ingredients of Section 74 are not made out.
Conclusion: The notice under Section 74(1) is unsustainable and shall be deemed to have been issued under Section 73(1), in favour of Assessee.
Issue (iii): Whether invoice values that did not separately charge tax must be treated as cum-tax values under Rule 35 in computing tax.
Analysis: The invoices did not contain a separately identifiable tax component, and there was no allegation that tax had been collected over and above the invoice value. Rule 35 requires tax to be computed from the value inclusive of tax. The statutory benefit is available on the admitted record even though it was not specifically claimed earlier.
Conclusion: The declared invoice values must be treated as cum-tax values and the tax liability must be recomputed under Rule 35 after verification, in favour of Assessee.
Final Conclusion: Tax on the independent food supply is to be quantified on the ordinary-demand basis, with statutory cum-tax valuation applied and without treating the matter as involving fraud or suppression.
Ratio Decidendi: A supplier that independently provides only food to a hospital does not render a naturally bundled healthcare supply merely because the food is ultimately consumed by in-patients.