TaxTMI 
TaxTMI 
2019 (5) TMI 260
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....ary & higher education cess of Rs. 7,035/- for the period 01/10/2002 to 31/12/2007 under Section 73(2) of the Finance Act, 1994 and also levied interest at the appropriate rate under Section 75 and imposed penalty of Rs. 1000/- under Section 77 and equal penalty under Section 78. 2.1. Briefly the facts of the present case are that the appellant is a reputed five star hotel situated at Kumarakom, Kerala. As part of promoting tourism related activities, the resort is having an ayurvedic health club and fitness centre named 'Ayurmana' in its premises which offers ayurvedic packages like rejuvenation therapy programme, relaxation programme and stress relieving therapy packages with predetermined tariff rates. It has employed about 10 profess....
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.... hence are not liable to service tax. He further submitted that for providing for various ayurvedic massage services at their health club and fitness centre, the appellant has employed 10 professionally qualified therapists and two qualified full time doctors and services are provided under the supervision of qualified doctors. He further submitted that before massages are given, the guests have to undergo pre-medical examination by the doctors and thereafter the massages are given as per the advice of the doctors under their supervision and proper treatment registers, case sheets and treatment summary are maintained and some of the copies of the same have been annexed with the appeal papers. He further submitted that the therapeutic massag....
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....ent is maintained by the appellant. We also find that the appellant has been certified as Ayurvedic Center by the District Medical Officer of Kerala. We also find that the certificates of the qualification of the doctors working in the Centre have also been furnished by the appellant. Further we find that on identical issue, with regard to the health center situated adjoining to the appellant, the Commissioner(Appeals) has allowed the appeal and the Department filed three appeals which were dismissed by this Tribunal vide its Final Order dt. 31/07/2018 cited supra. It is relevant to reproduce the relevant findings of the Tribunal which is contained in para 5 & 6 and is reproduced herein below:- 5. Heard both sides and perused the r....
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....rapy, etc. given by qualified professionals under medical supervision for curing diseases/disorders will come under the category of therapeutic massages. If the massage is performed without any medical supervision or advice but for the general physical well being of a person, such massages do not come under the purview of therapeutic massages and they would be liable to service tax". 5.2 On going through the records of the case, it is found that the different ayurvedic centres have the following common credentials: (i) They are run under the supervision of a qualified ayurvedic doctors. (ii) Having a license from Municipal Council or Gram Panchayat to run such ayurvedic hospitals (iii) They have certificates given by the Department....
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....ficates of the patients. The ayurvedic doctors attached, supervise the treatment, prescribes food restrictions and the type of oil that should be used. The prescribed treatments are contained in Ayurvedic Pharmacopeia like Astanga Hridayam, Charaka Samhita and Susrutha Samhita, etc. It is therefore seen that these centres provide a holistic ayurvedic treatment which includes massages given by qualified professors under medical supervision for curing diseases. In the literature meant for therapies, it is also mentioned that the therapies at the centre are ayurvedic massages like Dhara, Pizhichil for curing all kinds of ailments are offered. It is also mentioned that the therapies at the centre are under the guidance of an export Vaidyan (Phy....
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....at sole reason', held to be no treatment. It is common knowledge that a good number of foreign tourists visit Kerala during a particular season for pleasure as well as medical reasons. Not all the people who stay in the resort may take the treatment. What is important is whether such treatments are given by a qualified Doctor/Doctors and whether the procedures are prescribed under therapeutic tests. It is not the department's contention that the massages and panchakarma and other treatments provided by the respondents are not mentioned in ayurvedic texts. The learned counsel for the respondents have clearly brought out that these processes/treatments are emanating from the ayurvedic texts like Astangahrudaya, Sahasrayoga, Charakasamhitha, S....