OIKOS Vs. COMMISSIONER OF C. EX., BANGALORE-III

JUDGEMENT

(1.) THIS appeal arises from Order -in -Appeal No. 173/2003 dated 28 -10 -2003 by which the appellants claimed to be treated as Architect and Landscape Designers has been rejected and also their plea that they were only sub -contractors of M/s. Chandravarkar and Thacker (P) Ltd., Bangalore and therefore the Service Tax is not leviable on the sub -contractors.

(2.) THE Commissioner (A) has noted that they had got themselves registered as Interior Decorators for Service Tax purpose and therefore the change in category cannot be done as they claimed as after thought. He also noted in the impugned order about the fact that appellants are sub -consultants to architect M/s. Chandravarkar and Thacker (P) Ltd.

(3.) THE appellants contested the issue before the Commissioner and pointed out in their application for registration they had never claimed themselves to be Interior Decorators yet the department has considered as Interior Decorators which was contested by them before the Commissioner. Their plea was accepted and they were directed to be registered as Architects. He submits that these facts were apparent on record. The Commissioners finding that their claim is after thought is not correct when the facts were known to the department. He further points out that the fact that appellant being a sub -contractor to the M/s. Chandravarkar and Thacker (P) Ltd. is an admitted fact and not disputed by Revenue. In such a circumstance, Revenue cannot proceed to recover the Service Tax against the sub -contractor, as noted by the Trade Notice No.53 -CE/ST/97 dated 4 -9 -97 issued by the New Delhi Commissionerate and Counsel also refers to Board Circular dated 7 -10 -98. He also refers to the Final Order of this Bench No. 1382/06 dated 14 -8 -2006 [2006 (4) S.T.R. 475 (Tribunal)] rendered in the case M/s. Semac Pvt. Ltd. v. CST and also that of Final Order No.1471/2006 dated 12 -9 -2006 [2006 (4) S.T.R. 269 (Tribunal)] rendered in the case of M/s. BBR (India) Ltd. v. CCE. He submits that in both these rulings, this Bench has clearly held that the tax liability cannot be fixed on a sub -consultant and which has to be raised only on the main consultant. He submits that the main consultant admittedly in this case is M/s. Chandravarkar and Thacker (P) Ltd., Bangalore and that the fact of appellant being sub -contractor to M/s. Chandravarkar and Thacker (P) Ltd., Bangalore is not disputed and hence, the demands are not sustainable.