Bariatric surgery not cosmetic procedure, tax tribunal rules

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The Larger Bench of the Customs Excise and Service Tax Appellate Tribunal (CESTAT), Delhi, ruled on Wednesday that service tax cannot be imposed on bariatric surgery as it is a life-saving procedure and not a cosmetic one. The tribunal stated that bariatric surgery is for people who have health issues such as type-2 diabetes, hypertension, sleep apnea and coronary artery disease, which stem from their excess weight, and is different from weight-loss procedures such as liposuction.

The order was passed after Dr Mohit Bhandari, a bariatric surgeon who runs Mohak Hitech Speciality Hospital in Indore, moved the tribunal in 2015 against the service tax levied on him under the Finance Act. Dr Bhandari was one of 15 bariatric surgeons, including some from Mumbai, who had lodged appeals in the tribunals in Delhi and Mumbai for relief from the service tax imposed on them.

Note sent to municipal commissioners, divisional commissioners and district collectors does not mention testing, radiology staff. As part of his appeal, Dr Bhandari had presented various studies conducted in India and abroad that show how cosmetic surgery and weight-loss surgery are two different procedures. One study conducted in Cleveland suggested that weight-loss surgery resulted in a resolution of type-2 diabetes in 95 percent of patients, obstructive sleep apnea in 98 percent, joint pains in 80 percent, and lipid disorders in 96 percent.

He told Mirror, “Obesity is a disease. We have the lives of so many patients change after they undergo bariatric surgery. Apart from losing weight, many of their comorbidities associated with obesity disappear. This shows that bariatric surgery is used to treat obesity and associated medical ailments, and is not cosmetic surgery. Those who undergo the procedure suffer from life threatening diseases. Many are not even able to walk. Most of these patients have other problems related to obesity too, such as type-2 diabetes, hypertension, arthritis, lipid disorders and obstructive sleep apnea.”

He added, “A person selected for this surgery should also have a body mass index of above 32.5 with co-morbidities. The surgery is performed as per guidelines issued by the Asia Pacific Chapter of the International Federation for the Surgery of Obesity and Metabolic Disorders, which are endorsed by Obesity Surgery Society of India. I did not pay service tax because I am saving the lives of my patients.”

LOVE them or hate them, but you cannot deny anonymous social media influencer Diet Sabya’s hold on the country’s fashion pulse. The tribunal observed that bariatric surgery is a procedure through which the food intake capacity of the patient is restricted, resulting in weight loss for control of obesityrelated diseases. It also observed that other weight-loss procedures such as liposuction only involve removing excess fat from specific target areas to improve the shape of the body.

“The appellant, therefore, contends that bariatric surgery is clearly distinguishable from plastic or cosmetic surgery inasmuch as it is intended to reduce the weight of an excessively obese person and thus, the treatment and prevention of various diseases… whereas plastic or cosmetic surgery is intended to improve the outer shape and appearance of the body,” said the bench.

It added, “The purpose of the surgery is not to improve the person’s appearance but to treat the root cause of the disease. Bariatric surgeries are undertaken by the appellant as life-saving surgeries and as a cure and treatment for life-threatening diseases. The same are in the nature of ‘healthcare services’, which are not taxable under the Finance Act, both prior to and after July 1, 2012.”

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