TaxTMI 
TaxTMI 
2020 (6) TMI 800
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....his notification extends the time limits to 30.06.2020, "where arty time limit for completion or compliance of any action, by any authority or by any person, has been specified in, or prescribed or notified under the said Act, which falls during the period from the 20th day of March, 2020 to the 29th day of June, 2020, and where completion or compliance of such action has not been made within such time, then, the time limit for completion or compliance of such action, shall be extended upto the 30th day of June, 2020." I. BRIEF FACTS OF THE CASE M/s Siemens Healthcare Pvt. Ltd, Plot No. 78, JIL Building, Sector 18, Gurugram (hereinafter, "the Appellant") has been, historically, in the business of trading medical equipment required to spread its business dimension by involving itself in the provision of diagnostic imaging services to hospitals (customers) and other clinical establishments for various Haryanais registered as a State taxpayer under GST in Gurugram. They are engaged in selling, establishing and maintaining the medical diagnostic/imaging equipment at the premises of their clients viz. hospitals and other clinical establishments. 1. As submitted by the applicant....
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....ight image. For, instance to position patients for an 1VIRI, the Applicant would need to decide on the correct imaging coil, the best Position and the protocol for the imaging; (iv) Operating equipment optimally to get accurate diagnostic images; (v) Communicating with physicians/ radiologist about images; (vi) Delivering/ handing over the acquired images to the Picture Archiving and Communication System ('PACS'), The application for advance ruling has been filed as the taxpayer intends to also deploy their professionals to run such machines in the hospitals, while maintaining these machines also. II. QUESTIONS IN ADVANCE RULING: The RULING has been requested on the QUESTION:- "Whether the provisioning of diagnostic imaging services under the agreement/contract executed by Siemens Healthcare Pvt. Ltd. (SHPL) with its customers would qualify for exemption from levy of GST under S. No. 74 of the Notification 12/2017-CT(R) dated 28/06/2017?" The Advance Ruling Authority (AAR) had provided the following Ruling: - RULING: "The services offered/ provided by the applicant do not qualify to be covered under the scope of exemption ....
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....ence, 'diagnosis' in 'by way of diagnosis' precludes a completed diagnosis. For understanding of the term 'diagnosis' as commonly accepted and construed in the health care industry, the definition of the term 'diagnosis' provided by National Cancer Institute, is as under:- "The process of identifying a disease, condition, or injury from its signs and symptoms. A health history, physical exam, and tests, such as blood tests, imaging tests, and biopsies, may be used to help make a diagnosis." That, dictionary meaning of the term "Diagnosis" is provided below:- ''The act or process of discovering or identify a diseased condition by means of a medical examination, laboratory test, etc." (Collinsdictionary.com) "Investigation or analysis of the cause or nature of a condition, situation, or problem" (merriam-webster.com) Further, in common parlance, diagnosis includes following components (source: Wikipedia.com):- "Complementing the already given information with further data gathering, which may include questions of the medical history (potentially from other people close to the patient as well), physical examination and various diagnostic te....
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....iny changes of structures within the body. For some procedures, contrast agents are used to improve delineation of structures; b. Computerized Tomography (CT): Computed tomography (CT) is a diagnostic imaging test used to create detailed images of internal organs, bones, soft tissue and blood vessels. The cross-sectional images generated during a CT scan can be reformatted in multiple planes, and can even generate three-dimensional images which can be viewed on a computer monitor, printed on film or transferred to electronic media; c. X-Ray/ Mammography: Radiography is an imaging technique using X-rays to view the internal form of an object. This is the oldest and most common imaging technology and most of us have experienced this. Mammography is an advanced X-Ray picture of the breast, often using 3D reconstruction. It is used to check for breast cancer in women who have no signs or symptoms of the disease (screening). It can also be used if you have a lump or other sign of breast cancer (diagnosis). d. PET-CT: Positron emission tomography - computed tomography (better known as PET-CT or PET/CT) is a nuclear medicine technique which combines a p....
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....y the Appellant are imperative and must for a comprehensive and accurate diagnosis of the specific medical condition of the patient. That is to say, providing visual representations of the interior of human body or function of some organs or tissues is the stepping stone for many clinical analysis or medical interventions. Thus, Appellant's scope of services under the proposed contract to obtain images (creating visual representations) of interior of body through a medical imaging or radiology equipment to assess the current medical condition of the patients for clinical analysis and medical interventions unequivocally falls within the ambit of the term "by way of diagnosis" for the purpose of the Notification. 6. Whether 'input services' for a hospital are entitled for the exemption? At the outset, it is submitted that the AAR, Haryana in its impugned order has not disputed that the Appellant would work as an independent entity at the customer's premises and provide the diagnostic imaging services falling under SAC 9993 (i.e. human health and social care services). Such healthcare services provided by the Appellant are its output supply. Therefore, once such factum of ....
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....'by way of is synonymous with the words 'for the purpose of. Since the services provided by the Appellant are 'healthcare services', it would be redundant to say that they are not for the purpose of 'healthcare services'. The Authority for Advance Ruling, Haryana has erroneously distinguished the judgment of the Hon'ble Supreme Court of India in His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 SCC 225, which dealt with the meaning of 'by way of'. The relevant extract is provided below:- "As the words and phrases - Permanent Edition, Vol. ii, p-111 would show that 'by way of' may be taken to mean 'as for the purpose of 'in character of, 'as being' and was so intended to be construed in an Act providing that certain companies should pay an annual tax for the use of the State, 'by way of a license for their corporate Franchise. The illustration given should show that in fact the payment of license fee, is not a tax, but it is so considered to be by way of tax." In this respect the AAR, Haryana has failed to consider that judicial principles and rules of interpretation can be applied universally in all cases irrespective of the iss....
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....y of GST The AAR, Haryana has erred in holding that the SAC mentioned in column 2 of the Exemption Notification is only indicative. It is stated that Column 2 of the Exemption Notification mentions SAC 9993 which includes all types of human health and social care services. Further, 'diagnosis' and 'diagnostic imaging services' are covered under SAC 999312 to the Explanatory Notes. Therefore, if the intention, of the legislature was to restrict the scope of exemption entry to actual diagnosis then it would have clearly indicated SAC 999312 in Column 2 of the table to the Exemption Notification. However, Column 2 mentions SAC 9993 and Column 3 starts with the phrase services 'by way of which clearly means that the intention of the legislature was to further expand the scope of the exemption entry. It is a settled principle of law that exemption Notification should be interpreted harmoniously to give full effect to the legislative intent behind introducing the same. 9. Reference is drawn to the decision of Supreme Court in the case of Tata oil Mills Co. Ltd. Vs Collector of Central Excise on 14 August, 1989,1990 AIR 27, 1989 SCR (3) 839, Wherein it has been held that in tr....
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....:- "5. is GST leviable in following cases: (1) Hospitals hire senior doctors/ consultants/ technicians independently, without any contract of such persons with the patient; and pay them consultancy charges, without there being any employer employee relationship. Will such consultancy charges be exempt from GST? Will revenue take a stand that they are providing services to hospitals and not to patients and hence must pay GST? Clarification: Health care services provided by a clinical establishment, an authorized medical practitioner or para-medics are exempt (SI. No. 74 of notification No. 12/2017- CT (Rate) dated 28.06.2017 as amended refers). Services provided by senior doctors/ consultants/ technicians hired by the hospitals, whether employees or not, are healthcare services which are exempt." Basis the above clarification, it can be construed that services of technicians/ consultants to the hospitals, for further provision of services to the patients by the hospitals, shall be construed as provision of healthcare service by the third parties and shall qualify for the exemption. Given this, services so rendered by the Appellant b....
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....:- "4. We are of the opinion that the theory evolved by the High Court may not be really called for in the circumstances of the case. We are of the opinion C / that this appeal has to be dismissed on the ground urged by the assessee himself. As stated above, the order of the Deputy Commissioner is said to have been made on 6-1-1973, but it was served upon the assessee on 21-11-1973 i.e. precisely 10.5 months later. There is no explanation from the Deputy commissioner why it was so delayed, if there had been a proper explanation whatsoever, we must presume that the order was not made on the date it was purports to have been made, it could have been made after the expiry of the prescribed four years period." Basis the above, it can be construed that due to such inordinate delay in serving the ruling on the Appellant, the AAR, Haryana had not passed the ruling on the date it purported to have been made. Given the above, the ruling of the AAR, Haryana is ought to be set aside and the appeal of the appellant must be allowed. IV. RECORD OF PERSONAL HEARING Shri Gajendra Maheshwari, Advocate, Attended the personal hearing on 25-08-2021 through video conference on beha....
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....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; 2. The Board's Circular No 32/6/2018-GST dated 12.02.2018 mentioned by the Appellant at the time of personal hearing reads as under: 5. Is GST leviable in following cases: (1) Hospitals hire senior doctors/ consultants / technicians independently, without any contract of such persons with the patient; and pay them consultancy charges, without there being any employer employee relationship. Will such consultancy charges be exempt from GST? Will revenue take a stand that they are providing services to hospitals and not to patients and hence must pay GST? Health care services provided by a clinical establishment, an authorised medical practitioner or para-medics are exempt. [SI.No. 74 of notification No. 12/2017-CT (Rate) dated 28.06.2017 as amended refers]. (1) Services provided by senior doctors/ consultants/ technicians hired by the hospitals, whether employees or not, are healthcare services which....
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....te (Per cent.) Condition (1) (2) (3) (4) (5) 74 Heading 9993 Services by way of- (a) health care services by a clinical establishment, an authorised medical practitioner or para-medics; (b) services provided by way of transportation of a patient in an ambulance, other than those specified in (a) above. Nil Nil 4. We find that the exemption provided vide the Notification is to 'Services by way of- (a) health care services - by a clinical establishment, - an authorised medical practitioner or - para-medics; OR (b) services provided - by way of transportation of a patient in an ambulance, other than those specified in (a) above. Thus the exemption is to Services and not to Technicians or Doctors/ Medical Practitioners or Para-Medics or Ambulance Operators. Clearly, the case of Appellant M/s. Siemens Healthcare Pvt. Ltd. (SHPL) is not covered under ambulance services. Now, the question arises whether the Appellant's services meet the dual criteria of a. being health care services; and also b. whether provided as a clinical establishment. Obviously the services unde....
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....lso known as an ambulance technician, is a health professional that provides emergency medical services. EMTs are most commonly found working in ambulances. In English-speaking countries, paramedics are a separate profession that has additional educational requirements, qualifications, and scope of practice". Miller-Keane Encyclopaedia and Dictionary of Medicine, Nursing and Allied Health, Seventh Addition (c) 2003 by Saunders defines a Paramedic as,- "a person trained to manage the emergency care of sick or injured person transport to a hospital, including administration of injections and intravenous fluids, reading of electrocardiograms, and performance of defibrillation & other advanced life support measures if ordered by a physician." Thus it is clear that a Medical Technician which is more akin to a Paramedic and provides Healthcare Services to the patients, is exempt as per the clarification cited by the CBIC's circular. 6. It is observed that SHPL is providing the input services of provision of installing/operating the MRI, CT scanners etc in the premises of its Customers (clinical establishments) and providing diagnostic images to them (clinical establishm....