TaxTMI 
TaxTMI 
2026 (6) TMI 307
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....ture of Certiorari quashing the impugned Show Cause Notice No. ADCOM/ENF/SZ/ACCT-10/DRC01/2023-24/01 dated: 24.08.2023, along with Form GST DRC 01 bearing File No. ADCOM/ENF/SZ/ACCT-10/DRC01/INS-967/2021- 22 dated: 24.08.2023 at Annexure-A and Form GST DRC- 01A bearing File No. ADCOM/ENF/SZ/ACCT- 10/ADJ/2023-24 dated: 05.08.2023 issued by Respondent No.1, enclosed as Annexure-B, on the ground that that same is bad in law as it seeks to tax indirectly, a service that cannot be taxed directly; c) To issued order(s), directions, writ(s) or any other relief as this Hon'ble Court deems it fit and proper in the facts and circumstances of the case in the inserts of justice." In W.P.No.23928/2023, the petitioner seeks the following reliefs: "a) To hold that the benefit of Notification No.12/2017-CGST(Rate) dated: June 28, 2017 at Annexure-P, which unconditionally exempt healthcare services from payment of GST, will be available even when the services are provided by the petitioner to the patient through another hospital; b) To issue order(s), directions, writ(s) in the nature of Certiorari quashing the impugned Form GST DRC-01 bearing File No. Notice No. ADCOM....
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....interalia engaged in providing Health Care Services, Medical Laboratory and Diagnostic - Imaging Services, Technical Testing, Inspection Certification Service etc. The petitioner entered into a Medical Services Agreement dated 10.07.2017 with M/s. Suchirayu Health Care Solutions Limited (hereinafter referred to as 'SHCS'). It is contended that as per the terms of the agreement, the patients at SHCS are provided with health care services by a medical team of Doctors and Para Medics supported both by petitioner and SHCS and the petitioner receives 75% of the total gross revenue of SHCS received from the patients every month. 4. The respondents inspected the premises of the petitioner who submitted its initial replies, subsequent to which, the respondent issued the impugned intimations in Form GST DRC - 01A, which was followed by the impugned SCNs calling upon the petitioner to pay sums of money towards Tax, Interest and Penalty. Aggrieved by the impugned SCNs, the petitioner is before this Court by way of the present petition. 5. Heard learned Senior Counsel for the petitioner and learned HCGP for the respondents and perused the material on record. 6. In addition to reiterat....
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....ion: AIR 1970 SC 253 ) v) EID Parry v. ACCT (Citation: 2000 AIR SCW 86) vi) Jindal Stainless Steel limited and others Vs State of Harayana and Ors (AIR 2016 SC 5617) vii) Kunnathat Thathunni Moopil Nair v. The State of Kerala and Anr reported at( AIR 1961 SC 552 ) viii) Khandige Sham Bhat v. Agrl. ITO (AIR 1963 SC 591) ix) Whirlpool Corporation vs Registrar of Trademarks ((1998) 8 SCC 1) x) Radha Kishan Industries vs State of Himachal Pradesh (Civil Appeal No. 1155 of 2021 ) xi) Magadh Sugar & Energy Limited at Vs the State of Bihar and Ors (MANU/SC/0706/2021) 8. Per contra, learned HCGP for the respondents would reiterate the various contentions urged in the statement of objections and submits that the petitioner, which is providing Support Services and getting 75% of the gross revenue from SHCS is covered by heading SAC 9985 and is liable to pay GST at 18% together with interest and penalty as demanded in the impugned SCNs, which do not warrant interference by this Court in the present petitions, which are liable to be dismissed. 9. I have given my anxious consideration to the rival submissions and perused the m....
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....ces such as food and beverages and other patient related services; in terms of 2017 Agreement, SHCS raised invoices on patients for the medical services provided and out of the total invoice amount, the petitioner raises an invoice on SHCS for 75% of the total amount and this amount represents the consideration payable to the petitioner for its role in providing health care services at SHCS facilities. The aforesaid Medical Services Agreement dated 10.07.2017 entered into between the petitioner and SHCS is as hereunder: "MEDICAL SERVICES AGREEMENT This Medical Services Agreement ("Agreement") is made on this 10th day of July, 2017 ("Execution Date") at Hubli, BY AND BETWEEN: 1. HEALTHCARE GLOBAL ENTERPRISES LIMITED, a company incorporated under the Companies Act, 1956, having its registered office at # 8, HCG Towers, P. Kalinga Rao Road, Sampangiram Nagar, Bangalore 560027, India, through its authorized signatory, Mr. Anant Kittur, Director - Projects (hereinafter referred to as "HCG" which expression, unless repugnant to the context or meaning thereof, includes its successors and permitted assigns); AND 2. SUCHIRAYU HEALTH C....
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....directly or indirectly, controls a Party. For the purposes of this definition, "control" means the right to cast more than 50% (fifty percent) of the votes exercisable at an annual general meeting of such Party (or its equivalent) or ownership of more than 50% (fifty percent) of the equity share capital of or other ownership interests in such entity, or the right to direct the policies or operations of such entity; "Agreement" means this medical services agreement and includes all schedules, exhibits, annexures and/or any supplements or amendments to this Agreement executed in writing by the Parties; "Applicable Law" means any laws, by-laws, statutes, rules, regulations, subordinate legislation, orders, ordinances, notices, notifications, directions, restrictions, common law, judgments, decrees, circulars, decisions or other requirements or directives of any Governmental Authority or any individual, partnership, corporation, company, unincorporated organisation, association, trust or other entity acting under the authority of any Governmental Authority, as well as any protocols, policies, codes, guidelines, standards, resolutions and guidance notes and any interpr....
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....ation, employee compensation information, recruiting sources, consulting information, contacts, and cost, and similar information; and (v) all industrial and intellectual property rights used or required by the concerned Party, including (without limitation) patents, trademarks, service marks, trade names, domain names, designs, copyrights and the copyright in all drawings, plans, specifications, designs and computer software (including in each application thereof) in any part of the world and whether or not registered or registerable and all know-how, inventions, formulae, trade secrets, confidential or secret processes and information including all documents relating thereto). "Dispute" shall have the meaning ascribed to it in Clause 17.1.1; "Due Date" shall have the meaning ascribed to it in Clause Error! Reference source not found.; "Encumbrance" means any mortgage, charge (whether fixed or floating), pledge, hypothecation, deed of trust, title retention, assignment, deposit arrangement, encumbrance, lien, including negative lien, preference, priority, right of first refusal, pre emptive right or any other security agreement or arrangement of....
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.... quasi-governmental authority; "General Insurance" shall have the meaning ascribed to it in Clause 10.3; "Gross Revenue" in any period, during the Term, shall mean the amount of all revenue billed by the Hospital (including the revenue from the delivery of any Services, and the sale of drugs, pharmaceuticals and consumables at the Hospital, income from the out-patient services, in-patient services, investigation and diagnostic services, surgical procedures, pharmacy income, allied services such as food and beverage and revenue from other outsourced services) during the said period. The Gross Revenue in any period shall be computed based on the actual collections in such period and shall be net of any and all Taxes, including, inter alia, service tax or any such applicable Taxes, included in the invoices. For the purposes of clarity, the tax deduction at source deducted on the payments made by customers availing credit facilities to Hospital shall form part of the Gross Revenue and shall not be excluded from the definition of Gross Revenue; "Hospital" means the 280 (two hundred and eighty) bed hospital at Mariyan Timmasagar Village, Hubli Taluk, Dharwad Di....
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....ion tax, value added or transfer taxes, governmental charges, fees, levies or assessments or other taxes, levies, fees, stamp duties, withholding obligations and similar charges imposed by a Governmental Authority and shall include any interest, fines, and penalties related thereto and, with respect to such taxes, any estimated tax, education cess, surcharge, interest and penalties or additions to tax and interest on such penalties and additions to tax; "Term" shall mean the term of this Agreement or any renewal thereof commencing from the Execution Date as contemplated in Clause 14.2; "Third Party" shall mean any Person other than the Parties to this Agreement. 1.2 Interpretation (a) Any reference herein to any Clause or Annexure is to such Clause of, or Annexure to, this Agreement unless the context otherwise requires. The Schedules, Annexures and Exhibits to this Agreement shall be deemed to form part of this Agreement. (b) The headings are inserted for convenience only and shall not affect the construction of this Agreement. (c) Unless the context otherwise requires, words importing the singular include the plural and vice v....
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.... or done on the next Business Day; and (c) if a period occurs from, after or before a day or the day of an act or event, it excludes that day. 2. PROVISION OF SERVICES 2.1 Subject to the terms and conditions of this Agreement, and on and from the Commencement Date, HCG hereby agrees to provide to the Company, and the Company hereby agrees to avail exclusively from HCG only, the Services without any interference or obstruction from the Company on a, principal to principal basis, in consideration whereof, HCG shall receive the Service Fees in accordance with the terms of this Agreement. 2.2 In the event that the Parties reach an agreement with respect to the provision of any additional services other than the Services, then HCG and the Company shall execute an addendum, in the format as circulated by HCG ("Services Addendum"). Each Services Addendum executed by the Parties shall specify the additional services and the fees payable for such services and be appended to this Agreement. The applicable Services Addendum and this Agreement shall constitute the entire agreement for providing the Services. To the extent any terms set forth in a Services Ad....
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.... operations of the Hospital and its bank account where the Gross Revenue is accrued. 4.1.2 The Company shall obtain and maintain during the Term, complete and accurate books, records and accounts of the business in accordance with generally accepted accounting principles and Applicable Law. 4.1.3 During the Term, HCG shall be entitled to, after giving a reasonable notice to the Company, inspect, verify or independently audit the books of accounts maintained by the Company for the Hospital/Property. The Company shall also provide a parallel terminal of its books of accounts, such that the same is accessible by HCG, to enable HCG to review the collection of Gross Revenue. 5. BRANDING RIGHTS 5.1 Unless otherwise notified in writing by HCG, the Parties agree that the Hospital shall be called "HCG Hospital" or any other name as it deems fit at its discretion and HCG shall have the right to use its own signages, banners, posters or any other promotional material for advertising and marketing the Hospital at any place within the Hospital and/or the Property and specifically on the Hospital building, entrance to the Hospital and the Property, the recepti....
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....any breaches this Clause 5.5, whether partially or otherwise. 6. ACCESS RIGHTS 6.1 The Company shall provide complete, unrestricted and free access to HCG and its employees, representatives, nominees, delegates, agents, officers, executives and appointees (free from any hindrance or expulsion or discharge or impairment by the Company or any other Person claiming under, through or by right of the Company) to the Hospital and/or the Property for the duration of the Term, in order for HCG to provide the Services, in accordance with the terms of this Agreement. 6.2 The Company agrees to pay and discharge any payments and charges, at its own cost and expense, to prosecute all appropriate actions, judicial or otherwise, necessary to assure HCG's free and quiet use of the Hospital and/or the Property in accordance with the terms of this Agreement. In the event that the Company carries out construction of any land to the Hospital building or construction to the Property the Company covenants that due care shall be taken by the Company to ensure that the Hospital's and/or the Property's access is not obstructed as a result of the construction activity ....
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....ll the payment towards utility services like water, drainage, telephone, pumps, electricity (including generator fuel consumed) to the Hospital, repairs and maintenance including AMC's and CMC of equipments during the Term of this Agreement. 7.1.4 The Company shall enter into long time definitive agreement with all promoter doctors who will be working exclusively with the Company and shall be solely responsible for their payments during the Term of this Agreement. 7.1.5 The Company shall also undertake the Maintenance Capex as required from time to time during the Term of this Agreement. 7.1.6 The Company shall not undertake or carry out: (a) any construction on the Hospital/Property which directly or indirectly affects the provision of the Services; (b) any repair, renovation or interior work which, in the opinion of an expert appointed by HCG, will affect or is reasonably likely to affect the structural stability of the building on which the Hospital lies or the Property in general; or (c) make any modifications or additions to the premises of the Hospital, without the prior consultation and written consent from HCG. The P....
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....roperty. 7.1.13 The Company shall use commercially reasonable efforts to prevent any liens or other security interests from being carried out or filed against the Hospital or any part thereof, that arises from any structural repairs, maintenance, general repairs, alterations, improvements, renewals or replacements in or to the Hospital or any part thereof. 7.1.14 The Company shall be responsible for complying with requirements imposed by Governmental Authorities. 7.1.15 The Company shall be responsible for providing HCG copies of the Hospital related documents and any additions, amendments or replacements thereto, which are relevant for HCG to fulfill its obligations under this Agreement. 7.1.16 The Company shall in no event borrow money in the name of or pledge the credit or title of HCG. 7.1.17 The Company shall be responsible for adhering to HCG's internal company policies, code of conduct and best practices, as well as standard operating procedures that are released by HCG from time to time. 7.1.18 The Company shall be responsible for providing for fire fighting equipment and power back-up facilities at the Hospital. ....
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....Each Party agrees that their staff, employees, officers and personnel shall not, nor shall they be deemed to be at any time during the Term, the employees of the other Party. The personnel deployed by HCG to provide the Services acting under the terms of this Agreement, shall be deemed at all times to be under the supervision and responsibility of HCG. Similarly the existing personnel or the personnel employed by the Company in the Hospital shall at all times be deemed to be under the supervision and responsibility of the Company. Each Party shall be solely responsible for disbursement of wages/salaries every month to the personnel employed by them and HCG shall in no manner be responsible for any of the exiting personnel at the Hospital. Each Party shall comply with all the statutory provisions including labour legislations applicable to such Party from time to time. The Company shall indemnify and hold harmless HCG against all claims, demands etc. that may be made for non-compliance of this Clause 9. Each Party shall make it clear to the personnel deployed by them that they will have no claim for employment with the other Party. 9.2 The Company shall not induce, directly....
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....m, the Company shall procure, maintain and keep in force suitable exhaustive Company Medical Liability Insurances insurance coverage from a competent insurance company covering every risk/peril against the Hospital and its personnel/staff, including business interruption, all risk policy for plant and equipment breakdown insurance covering the full value of the plant and equipment and Third Party cover ("General Insurance"). Such coverage shall be as decided by Hospital Advisory Committee from time to time. The General Insurance procured in accordance with this Clause 10.3 shall be obtained from an approved insurance company. The General Insurance shall be carried in the name of the Company and any losses thereunder shall be payable to the Company. The Company shall provide copies of the General Insurance policies and renewal certificates procured upon the HCG's request. 10.4 Damage to the Hospital 10.4.1 The Parties agree that any repair, replacement or rebuilding of the Hospital shall be the sole responsibility of the Company and HCG shall not be responsible for the same on any account. 10.4.2 In the event the Hospital has been destroyed (whether fu....
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.... connection with the Agreement, to the extent it is a party thereto, constitutes its legal, valid and binding obligation enforceable against such Party in accordance with its terms; (d) It has not taken any action and no other steps have been taken or legal proceedings started by or against the Party in any court of Law for winding up, dissolution, administration or re-organisation or for the appointment of a receiver, administrator, administrative receiver, trustee or similar officer of any or all of its assets; and (e) It has not taken any action and no other steps have been taken or legal proceedings started by or against the Party for declaring it as insolvent or the appointment of a receiver, trustee or similar officer of any or all of its assets. 11.2 The Company represents and warrants to HCG, that as of the date hereof, and as on the Execution Date: (a) The Company has obtained and will maintain throughout the Term of this Agreement, all Approvals including any Approvals required under Environmental Law, which are or which may at any time be required for or in connection with the Services to be provided to the Hospital; corporate Approval....
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....es, outgoings or other dues. 12. INTELLECTUAL PROPERTY AND RECORDS 12.1 The Parties agree that the Company shall not: (a) use or permit to be used any intellectual property including the trade name or trade mark or logo, brand name or copyrights, softwares, service marks, patents, owned or being used by HCG or its Affiliates ("HCG Intellectual Property"), or any trade name, trade mark, logo or brand name which is identical or phonetically or deceptively similar to in any manner whatsoever at any time during the Term or thereafter without obtaining prior written approval from HCG; (b) make any claims to any HCG Intellectual Property or do any act that adversely affects HCG's right, title or interest in the HCG Intellectual Property and agrees that all the rights, title and interest in the trade name or trade mark or in the brand name, design, logo, business name of HCG or its variants, exclusively belong to it and its Affiliates and that the Company shall have no right or property therein other than as may be approved in writing by HCG; and (c) cause or permit anything to be done, which may damage or endanger the right of HCG to the H....
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.... actions, suits and proceedings which they may face and all costs, charges and expenses relating thereto, arising out of: (a) any breach, violation or non-compliance on the part of the Indemnifying Person or its directors or employees or agents, of any statutory provisions and Applicable Laws including any rules, regulations, bye-laws and lawful directions of any Governmental Authority or public authorities including but not limited to a situation where the Indemnified Person is unable to provide Services during the Term or any renewal thereof; (b) any execution, attachment or like proceedings being initiated against the Indemnifying Person which directly affects or concerns the Hospital or any rights or obligations of the Parties under this Agreement; (c) any breach of the terms of this Agreement (including the representations and warranties) by the Indemnifying Person or failure or neglect on the part of the Indemnifying Person to fulfil or perform any of its obligations under this Agreement including but not limited to a situation where Indemnified Person is unable to provide Services during the Term or any renewal thereof. 15.2 The Indemnifie....
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....e Company shall provide HCG a right of first option to: (a) provide services similar to the services at such other hospitals or (b) provide services other than the Services at the Hospital. The Company shall, prior to setting up such other hospitals apart from the Hospital or prior to commencing other services at the Hospital, issue a written notice to HCG on the terms and conditions on which it is desirous of setting up the hospital or receiving other services at the Hospital and HCG shall within a period of [30 (thirty)] days from the date of issuance of such notice, respond to the written notice with respect to its acceptance or refusal of the terms and conditions of providing services similar to the services at such other hospitals or providing services other than the Services at the Hospital. In the event that the Company does not receive the acceptance notice from HCG within a period of [30 (thirty)] days from the date of issuance of such notice, then the Company shall be entitled to appoint any other service provider for the purposes of providing services similar to the services at such other hospitals or providing other services at the Hospital, provided however that, such ....
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....understood by the Company that in the event that the Company fails or breaches the provision as set out in Clause 16.3, irreparable loss, harm and injury would be caused to HCG on a continuous basis for which HCG shall be compensated on a daily basis over and above and without prejudice to the rights, remedies and compensation available and permitted to HCG under any Applicable Law. Therefore the Parties hereto have after detailed consideration of various factors quantified such compensation as INR 10 Lacs, to be paid to HCG for each day that the Company breaches this Clause 16.3 as required under this Agreement. The Company hereby agrees that the aforesaid amount of liquidated damages payable to HCG is reasonable compensation for any losses suffered or incurred by HCG based on a genuine pre-estimate of the losses that HCG would suffer or incur, in the event the Company breached this Clause 16.3, whether partially or otherwise. 17. DISPUTE RESOLUTION AND ARBITRATION 17.1 Amicable Settlement 17.1.1 If any dispute or difference of opinion of any kind whatsoever shall arise between the Company and HCG, in connection with or arising out of this Agreement, inc....
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.....1 Neither Party shall be liable to the other Party or be deemed to be in breach of this Agreement by reason of any delay in performing or observing, or any failure to perform or observe, any of its obligations under this Agreement, if the delay or failure was due to any event which is not within the reasonable control of the Party affected ("Affected Party"), and with the exercise of due diligence, could not reasonably be prevented, avoided or removed by the Affected Party, and does not result from the Affected Party's negligence or the negligence of its agents, employees or sub-contractors, which causes the Affected Party to be delayed, in whole or in part, or unable to partially or wholly perform its obligations under this Agreement (other than a lack of funds or finances or any obligation for the payment of money) ("Event of Force Majeure") and shall include: (a) event of war (whether war declared or not), act of terror, sabotage, civil commotion, local disturbance, bombblasts, invasion, act of foreign enemy, hostilities, civil war, riot, rebellion, revolution, insurrection, mutiny, civil commotion, military or usurped power, martial law, conspiracy, confiscation, ....
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....reports to the other Party detailing its progress in overcoming the adverse effects of the Event of Force Majeure, and shall as soon as reasonably practicable after the commencement of the same submit to the other Party information supporting any claim for relief under this Clause 18.4. 18.5 The Affected Party shall not be obliged, when complying with its obligations under this Clause 18.4 to take any steps which would not be in accordance with prudent industry practice or to take any steps beyond its reasonable control. 18.6 Upon cessation of the effect of the Event of Force Majeure, the Affected Party shall, as soon as reasonably practicable, recommence the performance of its obligations under this Agreement. 18.7 An Event of Force Majeure shall not relieve a Party from its obligations which arose before the occurrence of such Event of Force Majeure and shall not affect the obligations to pay money in a timely manner. 19. CONFIDENTIALITY 19.1 Save as permitted pursuant to Clause 19.3, each Party shall treat as strictly confidential and shall not disclose to any Person any Confidential Information without the other Party's prior wri....
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....tial bankers, financiers or insurers of that Party, in each case for purposes of this Agreement; (f) following prior written notice to the other Party, it is disclosed to a bona fide potential assignee of the disclosing Party's interest in this Agreement or in the case of the Company, its proprietary interest in the equipment, the Hospital or the Hospital site, provided that the recipient of such Confidential Information shall be bound by the same if not stricter confidentiality obligations set-out hereto; (g) it is disclosed to the extent necessary and in connection with any legal proceedings between the Parties or referral to an independent engineer or in connection with any legal proceedings involving Third Parties only to the extent required by such proceedings) provided that the disclosing Party has taken all reasonable steps to prevent such disclosure and the disclosing Party has notified the other Party of such disclosure in advance and the other Party shall have the right to take steps as it considers necessary to resist production, pending which the disclosing Party shall take all reasonable steps to resist (or where that is not practicable, to minimi....
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....ees that the aforesaid amount of liquidated damages payable to HCG is reasonable compensation for any losses suffered or incurred by HCG based on a genuine pre-estimate of the losses that HCG would suffer or incur, in the event the Company breached this Clause 19, whether partially or otherwise. 20. MISCELLANEOUS 20.1 EXPENSES Each Party shall bear its respective expenses and costs incurred in connection with the preparation, execution and delivery of this Agreement. 20.2 NOTICE 20.2.1 All notices, reports, certificates or other communication to be provided under this Agreement shall be in writing, and shall be sent by personal delivery (against receipt), special courier, registered post with acknowledgment due, facsimile or electronic mail to the address of the relevant Party specified below: If to the Company: Name: Dr. Rajendra I Dugani Address: Survey No. 29, Javali Garden, Gokul Road, Hubli-580030 E-Mail: [email protected] If to HCG: Name: Sunu Manuel Address: Unity Building, # 3 HCG Corporate Office, P. Kalinga Rao Road, Sampangiram Nagar, Bangalore-5600....
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....is Agreement must be in writing, must be dated and signed by an authorized representative of the Party granting such waiver, and must specify the right and the extent to which it is being waived. 20.7 RELATIONSHIP BETWEEN PARTIES 20.7.1 HCG shall be an independent contractor performing this Agreement. Nothing in this Agreement shall constitute or be deemed to constitute any agency, partnership, joint venture, unincorporated association, cooperative entity or other joint relationship between the Company and HCG for any purpose. 20.7.2 No provision of this Agreement shall constitute either Party as the legal representative or agent of the other, nor shall either Party have the right or authority to assume, create or incur any liability or any obligation of any kind, express or implied, against or in the name of or on behalf of the other Party except as provided expressly under this Agreement. 20.8 PARTIAL INVALIDITY If at any time the provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under any Applicable Law, the Parties shall negotiate in good faith with a view of agreeing to one or more provisions....
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.... This Agreement, all correspondence and communications to be provided and all other documentation to be prepared and supplied under this Agreement shall be written in English language and this Agreement shall be construed and interpreted in accordance with that language. If any correspondence or communications are prepared in any language other than the English language, the English translation of such documents, correspondence or communications shall prevail in matters of interpretation. 20.14 GOVERNING LAW AND JURISDICTION This Agreement shall be governed by and interpreted in accordance with laws of India. Subject to Clause 17.2 (Dispute Resolution & Arbitration), the courts of Bangalore shall have exclusive jurisdiction in all matters arising under this Agreement. 20.15 SURVIVAL Clauses 12 (Intellectual Property), Error! Reference source not found. (Consequences of termination), 15 (Indemnification), 20.1 (Expenses), 20.2 (Notice), 20.4 (Third Party Rights), 19 (Confidentiality), 20.14 (Governing Law and Jurisdiction), 17 (Dispute resolution), 20.7 (Relationship between Parties) and 20.15 (Survival) shall survive termination of this ....
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.... services involve diagnosis, treatment and medical care provided to patients at a recognized clinical establishment and are therefore, squarely/fully/totally/completely covered by the said Exemption Notification especially since the petitioner's Doctors, Specialists and Para-Medical Personnel render treatment directly to patients and the consideration received for such services is wholly exempt from payment of tax and the impugned demands in the impugned SCNs seeking to tax such services is clearly contrary to law as well as being illegal, arbitrary and without jurisdiction or authority of law warranting interference by this Court in the present petition. 14. A perusal of the material on record will indicate that subsequent to issuance of the aforesaid Exemption Notification dated 28.06.2017, the Central Board for Indirect Taxes issued a CBIC Circular No.32/6/2018 dated 12.02.2018, which reiterates, clarifies and states that services rendered by Doctors, Consultants and Technicians engaged by Hospital, whether employed or otherwise are health care services and consequently, exempt from GST. The said Circular at Sl.No.5 which is relevant in this regard is as under: 5. Is GS....
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....ts as advised by the doctor/nutritionists is a part of composite supply of healthcare and not separately taxable. Other supplies of food by a hospital to patients (not admitted) or their attendants or visitors are taxable. 15. A conjoint/cumulative reading/effect of the aforesaid Exemption Notification and Circular reflect a clear legislative intention not to burden essential health care services, where the Exemption Notification exempts whole of the GST leviable on services by way of health care services provided by a clinical establishment, an authorized Medical Practitioner or Para-Medics; the Circular further clarifies that Hospitals themselves provide health care services and that the entire amount charged by them from patients including the retention money and any portion shared with Doctors is exempt from payment of GST; the exemption for health care has been retained consistently across the Indirect Tax Regime to ensure affordability of medical treatment end-to-end and any interpretation that results in taxing the services of the petitioner would defeat this intent and would result in an increased cost to the patient as the tax on the petitioner would not be available as....
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....re Services in the Exemption Notification read along with the aforesaid CBIC Circular dated 12.02.2018, which is sufficient to come to the conclusion that the petitioner is exempt from payment of GST as sought to be demanded in the impugned SCNs. It is therefore clear that the Notification and Circular must be read in a manner that gives full effect to their object, namely, to exempt health care services provided by Clinical Establishments, Authorized Medical Practitioners and Para-Medical Staff from the levy of GST and consequently, the impugned SCNs deserve to be quashed. 18. A perusal of the impugned SCNs will indicate that the respondents have attempted to classify the petitioner's activities as "Support Services" on the ground that the services provided by the petitioner is nothing but supply of skilled Doctor service to SHCS vide SAC 9985 is liable to GST at 18%; in this context, it is pertinent to state that the SCNs fail to consider and appreciate that as per the Medical Services Agreement entered into between the petitioner and SHCS, the true and predominant nature of the services is medical treatment rendered to patients; the petitioner does not provide man power or ad....
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....n terms of heading 85.24, по excise duty can be levied thereupon indirectly as it was impermissible to levy a tax indirectly. In that view of the matter the decision in PSI Data Systems (supra) must be held to have correctly been rendered." 20. Insofar as the contention of the respondents that the present petitions challenging the impugned SCNs are premature and are liable to be dismissed having regard to the existence of equally efficacious and alternative remedies available to the petitioner, who is liable to participate in the adjudication proceedings is concerned, in the light of lack/absence/want of the requisite/foundational jurisdictional facts, which are essential for the purpose of issuing the impugned SCNs by declining to grant exemption from levy/payment of GST under the aforesaid Notification and Circular, I am of the considered opinion that mere availability of alternative remedies would not come in the way of this Court exercising its jurisdiction under Articles 226 and 227 of the Constitution of India and as such, this contention urged on behalf of the respondents cannot be accepted. 21. In view of the aforesaid facts and circumstances, I am of the ....