Page 121 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] IN RE : OPTM HEALTH CARE PVT. LTD. 447
(a) eligibility to credit of input tax paid on goods/services used for
construction which is rented for commercial purposes
(b) to hold Section 17(5)(d) as ultra vires.
While the Hon’ble High Court has granted the prayer at (a), the Hon’ble High
Court has not accepted the prayer at (b) stating that they are not inclined to hold
the provision ultra vires. We find that the order of the Orissa High Court has been
appealed against by the Chief Commissioner of Central Taxes, Bhubaneshwar in
SLP (C) No. 026696 and the same is pending in the Apex Court. Since the order
of the High Court has not yet attained finality, the same does not have persua-
sive value.
25. In view of the above discussion, we pass the following order :
ORDER
26. We uphold the Order No. KAR ADRG 103/2019, dated 30-9-2019
passed by the Advance Ruling Authority and appeal filed by the appellant M/s.
Tarun Realtors Pvt. Limited stands dismissed on all counts.

_______

2020 (35) G.S.T.L. 447 (A.A.R. - GST - W.B.)
BEFORE THE AUTHORITY FOR ADVANCE RULING UNDER GST,
WEST BENGAL
Ms. Susmita Bhattacharya, Member (CGST) and Shri Parthasarathi Dey,
Member (SGST)
IN RE : OPTM HEALTH CARE PVT. LTD.

Order No. 46/WBAAR/2019-20, dated 20-3-2020 in Case No. 52 of 2019
Clinical Establishment - Phytotherapy - Plant-based preparations not
shown to be manufactured exclusively in accordance with the formulae de-
scribed in any authoritative book of Ayurveda specified in the First Schedule
of the Drugs and Cosmetics Act, 1940 nor are persons administering the plant-
based preparations shown to be ‘authorised medical practitioners’ in Ayurve-
da within the meaning of Para No. 2(k) of Notification No. 12/2017-C.T. (Rate) -
Applicant also not clarified whether these persons possess medical qualifica-
tion included in the Second Schedule of Indian Medicine Central Council Act,
1970 and registered thereunder as medical practitioners - Applicant not to be
regarded as clinical establishment offering treatment in the recognised ayur-
vedic system of medicine and its supplies are not, therefore, health care service
by a clinical establishment, as defined under Para No. 2(s) and not exempt un-
der Entry No. 74 of Notification No. 12/2017-C.T. (Rate). [paras 4.7, 4.8]
Ruling in favour of department
REPRESENTED BY : Shri Sambit Das, ACA, for the Assessee.
[Order]. - Admissibility of the Application :
1.1 The Applicant, stated to be providing a form of treatment called
“Phytotherapy” to cure osteoarthritis and disorders of similar nature, seeks a
ruling on whether the above service is exempted under Serial No. 74 of the Noti-
fication No. 12/2017-Central Tax (Rate), dated 28-6-2017 (State Notification No.
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