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TMI Blog2003 (10) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant apart from carrying on business as "Architects and Landscape Designers" to their own direct clients, were also doing business as sub-contractors/sub-consultants of M/s. Chandravarkar and Thacker (P) Ltd., Bangalore. The Deputy Commissioner of Central Excise, Service Tax Division, Bangalore-III Commissionerate, passed Order-in-Original No. 33/2003, dtd. 29-5-2003/30-5-2003 confirming the demand of Service Tax on the value/amount realised from M/s. Chandravarkar and Thacker (P) Ltd., Bangalore, the Service Tax amounting to Rs. 75,509/- under Section 73, interest under Section 75 and penalty of Rs. 75,509/- under Section 76 of the Finance Act, 1994. Aggrieved by the Deputy Commissioner's Order-in-Original No. 33/2003, dtd. 29-5-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchitects Pvt. Ltd., are also Architects. Thus, the benefit of Board Letter No. 11/3/98-TRU, dt. 7-10-98 ought to have been granted to them, as the tenor thereof was squarely applicable to the facts of the case. 5. The Deputy Commissioner has also erred in coming to the conclusion that sub-consultants are liable to pay the service tax, through the service tax was discharged by the principal consulting engineer i.e., CTAPL. 6. The impugned order decided on the basis of audit observations at the premises of CTAPL without any independent investigation is not legal or proper and is liable to be set aside. 3. A personal hearing was held on 23-10-2003 and the same was attended by Shri K.S. Ravi Shankar and K.S. Naveen Kumar, Advocates for M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between M/s. CTAPL and the appellants, that M/s. CTAPL have engaged the appellants for consultancy work and it is also clearly mentioned that the appellants are carrying on the profession as Interior Decorator. Though there is a mention of "sub-consultant" in the memorandum of understanding, as far as Interior Decorator services are concerned, the appellants are the main consultant for M/s. CTAPL. The client of M/s. CTAPL is not in the picture at all and, therefore, the appellants cannot be the sub-consultant to the clients of M/s. CTAPL. As I said in the previous para the client is M/s. CTAPL for the appellants in so far as the Interior Decorator Services are concerned. 7. Even treating the appellants as sub-consultant, the sub-consultant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tracting in question is in respect of the same service category." 8. Clarification issued by the Directorate of Service Tax vide their letter F. No. V/DGST/Misc.-7/98/Mumbai, dated 11-2-1999 reiterates the above. In addition Trade Notice No. 7/98-S.T., dt. 13-10-98 issued by Commissioner of Central Excise, Mumbai-I based on Board Circular referred supra clarifies this issue in regard to architects and interior decorators as follows: Further, in case where an 4.6 architect/interior decorator sub-contracts part/whole of his work to another architect/interior decorator, it is clarified that no service tax is required to be paid by the sub-contractor provided that the principal architect/interior decorator has paid the service tax on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have rendered to M/s. CTAPL inasmuch as M/s. CTAPL fall under different category of service provider i.e., architect. 11. In regard to the penalty under Section 76 of the Finance Act, 1994 the argument that the minimum penalty imposable is Rs. 100/- and not Rs. 100/- per day does not appear to be logical. In regard to the question as to whether the wording would mean Rs. 100/- every single day or not has been answered by the Hon'ble Tribunal (in respect of erstwhile Section 77 of the Finance Act, 1994) in the case of M/s. Harilal and Co. v. Commissioner of Central Excise Mumbai-I, 2000 (115) E.L.T. 375 (Trib.) West Zone Bench, Mumbai in the affirmative dissenting the decision of the Eastern Bench of the Hon'ble Tribunal [Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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