Page 188 - GSTL_23rd July 2020_Vol 38_Part 4

554 GST LAW TIMES [ Vol. 38
force as mentioned in the amended in Section 17(5)(b) of the CGST Act, 2017. Sec-
tion 9 of the CGST Amendment Act, 2018, which is in effect from 1-2-2019, has
inserted this condition, wherein the ITC in respect of health services will be
available to the employer provided such health services are obligatory for the
employer to provide to its employees under any law for the time being in force,
which, prior to this amendment act, was not available to any registered person
under Section 17(5)(b) of the CGST Act, 2017.
99. As regards the ruling of the AAR, we observe that the impugned
ruling is lucidly contrary to the provision of the CGST Amendment Act, 2018,
which clearly says that the ITC in respect of the health services are available to a
registered person subject to the condition that the employer i.e. the registered
person, is under obligation to provide such health services to its employees in
terms of the provisions of any law for the time being in force. In the present case,
it is obligatory for the Appellant to provide the health services to its employees
and their dependents as per the Ordnance Factory Medical Regulations. Hence,
the ruling pronounced by the AAR in this regard is erroneous, and warrants to
be set aside.
100. Now, let us examine the issue of admissibility of ITC, raised by the
Appellant, in question 2(d) of the advance ruling application, wherein they had
asked as to whether they were eligible to avail ITC in respect of input services
pertaining to maintenance and upkeep of guest houses maintained by them.
Here, it was held by AAR, Maharashtra that the Appellant were not entitled to
avail the ITC in respect of the input services pertaining to the maintenance and
upkeep of the Guest houses owned and controlled by the Appellant as the provi-
sions of the guest house facility to the employees are not in the course or further-
ance of business, and also the said services of the guest house facility were being
consumed personally by the Appellant and its employees, therefore, ITC in re-
spect of the inputs or input services related to the upkeep and maintenance of the
guest houses are not available to the Appellant in terms of the provision of Sec-
tion 17(5)(g) of the CGST Act, 2017. The Appellant has challenged this ruling of
AAR, and to support their contention, they have cited various case laws, which
are as under :
(a) ISMT Ltd. v. Commr. of Cus. & C. Ex., Aurangabad [2015 (40) S.T.R.
596 (Tri. - Mumbai)]
(b) L’Oreal India Pvt. Ltd. v. Commissioner of C. Ex., Pune-I [2011 (22)
S.T.R. 89 (Tri. - Mumbai)]
(c) Commissioner of C. Ex., Visakhapatnam v. Hindustan Zinc Ltd. [2009
(16) S.T.R. 704 (Tri. - Bang.)]
101. We have carefully considered the above cited judgments, which
have been relied upon by the Appellant to substantiate their submissions regard-
ing the admissibility of ITC in respect of the inputs and input services pertaining
to the maintenance and upkeep of the guest houses. The Hon’ble CESTAT,
Mumbai in the case of L’Oreal India Pvt. Ltd. v. Commissioner of C. Ex. (supra) inter
alia held that the appellants are entitled for input service credit on outdoor catering ser-
vice/housekeeping service except for the portion of their service for which they have recov-
ered some amount from the persons staying in guest house.
102. Thus, it is clearly revealed from the above Tribunal judgment that
ITC in respect of the portion of input/input services pertaining to the guest
houses, for which some consideration has been received from the persons avail-
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