Page 187 - GSTL_21st May 2020_Vol 36_Part 3

2020 ] IN RE : DKMS BMST FOUNDATION INDIA 433
11.3 The applicant collects the buccal swabs and samples from the po-
tential donors of blood stem cells and sends the same to the foreign entity, i.e.
LSL DE for HLA Typing which is required to be done as a prerequisite for any
organ transplantation. It is similar to doing a blood group testing before collec-
tion of blood from any blood donor. The samples of the potential donors would
be tested by the LSL DE at their laboratory in Germany and the results are posted
onto a database with clear classification based on the alleles and the location of
the donors. For this a consideration is charged to the applicant.
11.4 It is no doubt that LSL DE is providing a service to the applicant as
the applicant is liable to pay the consideration for the services provided. The con-
tract agreement for the Laboratory Services entered between the applicant and
the DKMS Life Science Lab GmbH (LSL DE) shows clearly that the LSL DE is
providing laboratory typing and testing services to the applicant and the appli-
cant is responsible to safeguard that import and export of the biological sample
material sent from India to the LSL DE in Germany is in conformity with the ap-
plicable legislation. Further, the typing results on the basis of the physical sam-
ples sent from India to Germany would be transmitted electronically by LSL DE
to the applicant and the remaining sample material (blood, buccal swab) would
be discarded after typing. An aliquot of extracted human DNA will be stored in
the LSL DE for an undefined period unless the applicant notifies LSL DE other-
wise and it is understood that these samples remain in the possession of the ap-
plicant. The contract also contains a Fee Schedule giving the consideration paya-
ble by the applicant for each workflow. Hence it is clear from the contract that
the applicant is receiving services from LSL DE and there is a supply as per the
scope specified in Section 7(1) of the CGST Act, 2017.
11.5 It is also clear from the above contract that what is deliverable is a
service and the same is a testing report in the form of HLA Typing Report and
hence LSL DE is providing services to the applicant.
12. Regarding the question, whether this service is a “health care ser-
vice” or not, the following are noticed :
12.1 “Health Care Services” are defined in paragraph 2 of the Notifica-
tion No. 12/2017-Central Tax (Rate), dated 28-6-2017 and the same is as under :
“(zg) “health care services” means any service by way of diagnosis or
treatment or care for illness, injury, deformity, abnormality or pregnancy in
any recognised system of medicines in India and includes services by way
of transportation of the patient to 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 or body af-
fected due to congenital defects, developmental abnormalities, injury or
trauma.”
The service of HLA typing is to identify the potential donors and is related di-
rectly to a transplantation to be done on a future date to a patient requiring such
transplant. Analogous to testing of Blood Group, HLA typing identifies the al-
leles of the donor and these alleles are matched with the alleles of the recipient of
transplant. The applicant gets the HLA of the potential donors typed and up-
loaded to the databases for the doctors to identify the potential donors. Hence
the service is to be received only to shortlist the potential donors and increase
chances of getting the perfect donors from a big list of potential donors and go-
ing through the entire process of testing ab initio and matching between the pa-
tient and the donor individually. This testing is sine qua non for any transplanta-
GST LAW TIMES  21st May 2020  187