TaxTMI 
TaxTMI 
2017 (5) TMI 672
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....ndents 3 and 4 are only formal parties against whom no relief is claimed. 3. Admittedly, the petitioner has a statutory alternative remedy of appeal to the CESTAT under Section 86(1) of the Finance Act, 1994. But the petitioner has chosen to come up with the present writ petition, bypassing the alternative remedy of appeal, on the short ground that the impugned order is completely without jurisdiction and contrary to the statutory scheme. It is now well settled that a writ petition can be entertained, without directing the party to avail the statutory alternative remedy, under two contingencies, viz., (a) wherever there is violation of natural justice; and (b) where there is lack of jurisdiction. 4. Since the case on hand is projected as one falling under the second category, we shall examine the same to a limited extent. 5. A perusal of the impugned Order in Original shows that a show cause notice was issued to the petitioner, on the basis of information gathered by the preventive section to the effect that the petitioner was providing various services, such as, steam bath, sauna/infrared bath, foot and arm bath, whirlpool bath, circular jet, full emersion bath, spinal sp....
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.... 6. xxxxxx 7. xxxxxx 8. Services by way of training or coaching in recreational activities relating to arts, culture or sports; 9. Services provided to or by an educational institution in respect of education exempted from service tax, by way of, - (a) auxiliary educational service; or (b) renting of immovable property; 10. Services provided to a recognized sports body by (a) an individual as a player, referee, umpire, coach or team manager for participation in a sporting event organized by a recognized sports body; (b) another recognized sports body; 10. In the order impugned in the writ petition, the 2nd respondent has not disputed the claim of the petitioner that they have registered themselves under Section 12AA of the Income Tax Act as a charitable institution. But what the 2nd respondent did was to go by the definition of the expression charitable institution found in the definition part of the notification dated 20.06.2012. The definition of the expression charitable activities under para-2(k) of the exemption notification dated 20.06.2012 reads as follows: Charitable activities means ....
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.... and mental wellbeing and fitness of body and mind. I observe that provision of various therapies and treatments under the system of medicine of naturopathy was incidental to the service of MSCT of providing physical well being and fitness. 13. Keeping the above finding of fact intact, if we have a look at para-2(k) of the exemption notification, it will be clear that the petitioner satisfies both the limbs indicated in sub-clause (a) and (b) of Clause (i) of para-2(k). The petitioner is allegedly indulging in public awareness and the petitioner is also indulging in the spreading of public health by way of care and counselling. Therefore, even on the basis of the findings recorded in para-30.2 it is not possible to conclude that the activities carried on by the petitioner would not fall within para-2(k) of the exemption notification. 14. An important aspect to be taken note of is that under Serial No.2 of the exemption notification health care services by a clinical establishment is exempted from payment of service tax. The expression clinical establishment is defined in para-2(j) of the exemption notification as follows: clinical establishment means a hospital, nurs....
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.... services. That the petitioner renders such services is not in doubt even from the findings recorded by the 2nd respondent herein. 18. Where the 2nd respondent appears to have gone wrong is that the 2nd respondent has taken the services provided by the petitioner for the wellbeing of an individual, as something out of the purview of the diagnosis or treatment. The 2nd respondent has fallen into an error in thinking so, due to a fundamental misconception that is normally prevalent in society. While Allopathic system of medicine is only for diagnosis and treatment of illness, many of the indigenous system of medicines, seek to prevent rather than prescribe. 19. One of us (VRS,J) had an occasion to consider the significance of and the need to nurture indigenous systems of medicine, in a decision rendered on 12.03.2012 in Dr. T. Arutselvam v. The Government of Tamilnadu, (W.P.Nos.3589 and 4452 of 2012 of the Madras High Court). Paragraph Nos.53 to 60 of the said decision is extracted as follows: 53. The history of Ayurveda and Siddha dates back to several centuries. Literally meaning the "science of life", Ayurveda is often used in a narrow sense as a "system of medicine....
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.... performed a surgery, which was witnessed by Thomas Cruso and James Findlay, Senior British Surgeons in Bombay Presidency. They described and drew the skin graft procedure and the same was published in the Madras Gazette. It was later reproduced in the October 1794 issue of the Gentleman's Magazine of London. The surgery was described in the following words:- "A thin plate of wax is fitted to the stump of the nose so as to make a nose of a good appearance, it is then flattened and laid on the forehead. A line is drawn around the wax which is then of no further use and the surgeon then dissects off as much skin as it had covered, leaving undivided a small slip between the eyes. This slip preserves the circulation till a union has taken place between the new and old parts. The cicatrix of the stumps of the nose is next paired off and immediately behind the new part an incision is made through the skin which passes around both alae, and goes along the upper lip. The skin now brought down from the forehead and being twisted half around, is inserted into this incision, so that a nose is formed with a double hold above and with its alae and septum below fixed in the....
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....s vaccination pure and simple. It would seem from it that Jenner's great invention was actually forestalled by the ancient Hindus." 58. As is the case with Ayurveda, the Siddha System of Medicine also has a history which dates back to several centuries. Traditionally believed to have been developed by 18 Siddhas including Sage Agasthiya, the Siddha System of Medicine has its own merits. But unfortunately, due to lack of patronage for the culture of the ancient times, this system of Medicine also suffered to a great extent under the colonial rule. It will be of interest to know that an Allopathy Doctor and Professor by name Dr.C.N.Deivanayagam, who is a Fellow of the Royal College of Physicians (Edinburgh), who retired as the Superintendent of the Government Hospital of Thoracic Medicine, Tambaram, presented a paper titled "HIV/AIDS and Siddha System of Healthcare - an experience of 13 years". He reported in the said paper that after the Government Hospital of Thoracic Medicine at Tambaram adopted an open door policy for HIV/AIDS in 1992, there was an exponential increase in the number of HIV sufferers seeking care and treatment. While the number of patients were only 2....
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....ystems of medicine are controlled and financed by the State Governments, and little interest is shown at the central level. This is probably because the Central Government depends on support for healthcare from international organisations backed by rich Western countries. Extensive promotion of indigenous systems might jeopardise this support and discourage foreign investment in drugs and healthcare. .. .. .. .. .. .. .. Two World Bank reports (1,2) recommend that the Government should leave tertiary curative healthcare to the private sector and concentrate on primary healthcare in the rural areas, immunisation and disease eradication programmes. This implies that India should go deeper into international debt by borrowing more money for these programmes, thus supporting the propagation of Western medicine on behalf of the multi- national drug and healthcare companies. Apart from the questionable economics of this prescription, it completely overlooks the existence of alternative systems of medicine and the possibility of using them to ensure healthcare coverage for the rural and urban populations of the nation." 60. Therefore, it is clear that ther....