TMI Blog2013 (10) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... st be referred to a larger bench of five members. Accordingly, we direct the Registry to place the papers before the Hon’ble President, for an appropriate decision. - ST/58658/2013 - Misc. Order No. 59225-59226/2013 - Dated:- 9-9-2013 - Mr. G. Raghuram and Mr. Sahab Singh, JJ. For the Appellant : Shri N. Venkataraman, Sr. Advocate and Shri Sanad Rama Krishnan, Advocate For the Respondent : Shri S.K. Sinha, D.R. ORDER Per Justice G. Raghuram : This application seeks listing of the appeal for consideration before a Larger Bench, of the five Hon ble Members. The substantive issue is whether works contract service is chargeable to service tax, prior to 1.6.2007. With effect from 1.6.2007, by the Finance Act, 2007, Section 65(105)(zzzza) was introduced authorising levy of service tax on services provided in relation to execution of a works contract, excluding works contract in respect of roads, airports, railways, transport terminals, bridges, tunnels and dams. The services provided by the petitioner/appellant pursuant to agreements on turnkey basis were brought to tax under other specified taxable services that were operative prior to 1.6.2007 i.e. under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in the appeal before this Tribunal, M/s Larsen Toubro (which is also the appellant herein) filed a writ petition before the Delhi High Court. The High Court by its order, reported in 2010 (20) STR 163 (Del.) rejected the writ petition on the ground that independent determination of the scope of the relevant provisions of the 46th Constitution Amendment is inappropriate in a proceedings under Article 226, at the instance of the writ petitioner who had an intervener in the appeal decided by the Tribunal. Against the decision of the Division Bench of this Tribunal [reported in 2007 (5) STR 124 (Tri.-Del.)], the assessee preferred an appeal to the Supreme Court, inter alia complaining that the order was ex-parte. The Supreme Court by the decision, reported in 2008 (9) STR J29 (SC) allowed the assessees appeal; set aside judgment of the ld. Division Bench on the ground that it was passed ex. parte and remitted the matter to this Tribunal for a fresh decision. Thereafter this Tribunal by the order reported in 2009 (13) STR 26 (Tri.-Del.) referred the appeal for consideration by a Larger Bench, on the issue whether service by way of advice, consultancy or technical assistance within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in BSBK Pvt. Ltd. 8. In the facts and circumstances therefore there is a conflict between three decisions rendered by benches comprising of three Members each in the Jyoti Ltd., Indian Oil Tanking Ltd. and BSBK Pvt. Ltd. Jyoti Ltd., and Indian Oil Tanking Ltd. larger benches have taken the view that a composite contract involving transfer of property in goods and services is not assessable to tax prior to 1.6.2007 under pre-existing taxable services such as commercial or industrial construction service or consulting engineering service etc. The decision in BSBK Pvt. Ltd. also a three Members bench propounded a contrary view, that the service elements of a composite works contract could be independently identified, on vivisection of the composite contract and brought to tax under pre-existing taxable services. There is thus an extant conflict between three Larger Bench decisions of this Tribunal, is the contention urged on behalf of the petitioner/appellant, for seeking resolution of this conflict by a larger bench of five hon ble members. 9. Per contra, it is urged on behalf of the Revenue by the ld. Departmental Representatives Shri S.K. Sinha supported by Shri A. Jain and Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces ought to have been placed before a Full Bench and not before a third judge. In my opinion, there is no merit in this contention. Section 259 says : Case before High Court to be heard by not less than two judges :- (1) When any case has been referred to the High Court under Section 256, it shall be heard by a Bench of not less than two judges of the High Court, and shall be decided in accordance with the opinion of such judges or of the majority, if any, of such judges. (2) Where there is no such majority, the judges shall state the point of law upon which they differ, and the case shall then be heard upon that point only by one or more of the other judges of the High Court, and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it. In accordance with this section, the references under s. 256 were heard by a Bench of two judges of the court. On the first question, they found that there was a conflict of decisions which required to be resolved. On the second point, there was a sharp difference of opinion. So it became necessary to refer to a third judge. This is perfectly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd shall be decided in accordance with the opinion of such judges or the majority if any of such judges. Sub-Section 2 further provides that where there is no such majority, the judges shall state the point of law upon which they differ, and the case shall then be heard upon that point only by one or more of the other judges of the High Court, and such point shall be decided according to the opinion of the majority of the judges who have heard the case including those who first heard it. The Counsel had urged before the High court that since there were conflict in decisions of the High Court, the reference must be placed before three judges. The observations of the High court extracted supra were made in view of the issue as to whether a conflict in decisions of Division Benches could be resolved by referring the conflict for resolution by a third Judge and upon the opinion of the third ld. Judge, the opinion of the majority could be construed to be a decision by a full Bench. 14. On principle and in the light of the observations of the Delhi High court in Puri (P.C.), we are of the considered view that wherever pursuant to a conflict opinion in a decision by a Division Bench, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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