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TMI Blog2013 (10) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... 05) (25b), as commercial or industrial construction service. 2. In this application, it is pointed out that two Larger Benches, in Jyoti Ltd. Vs. CCE -2008 (9) STR 373 (Tri.-Ahmd.) and CCE Vs. Indian Oil Tanking Ltd. 2010 (18) STR 57 (Tri.-Mum.) have held that in the absence of works contract service having been enumerated as an independent taxable service prior to 1.6.2007, a service provided which is essentially in the nature of a works contract cannot be brought to tax under other, existing taxable services. It requires to be noticed that the decisions in Jyoti Ltd. and Indian Oil Tanking Ltd. were the culmination of decisions of a third ld. Member resolving a conflict that arose in Division Bench judgments which presented contradictory conclusions, on the liability to service tax of 'works contract' prior to 1.6.2007. The conflict of each of these Benches was referred by the respective Division Benches to the third Member. On the basis of decision of third Member, the conflict stood resolved to propound the majority view that 'works contract' was taxable only after 1.6.2007 and not earlier thereto nor as a component of pre-existing taxable service. 3. Later, a Larger Bench (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspectus of a turnkey contract, would attract service tax and the essential issue as to whether a turnkey contract could be vivisected. 4. By the decision reported in 2010 (253) ELT 522 (Tri.-LB), the Larger Bench held that the turnkey contracts could be vivisected and the discernible service elements therefore could be segregated and classified for levy of service tax under the provisions of the Act, provided such services are taxable services, defined under the Act. It requires to be noticed that the ld. Larger Bench in BSBK Pvt. Ltd. was sensitised about contrary view of the Larger Bench in Jyoti Ltd. (para 3.2). However, BSBK Pvt. Ltd. neither analysed the ratio in Jyoti Ltd. nor disagreed with the operative ratio either expressly or by a compelling inference of the observations in BSBK Pvt. Ltd. 5. Some of the interveners in the BSBK Pvt. Ltd. decision of the Larger Bench thereupon filed writ petitions before the Delhi High court seeking clarification on the contours of the 46th Amendment to the Constitution. By the judgment reported in 2010 (20) STR 163 (Del.), the High Court rejected the writ petition declining to provide clarification of the 46th Amendment of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it that there no conflict between three Larger Benches. The contention on behalf of Revenue is predicated on the following premises : (a) Where a conflict ensues from an order of a Division Bench and such conflict is resolved by the decision of a third member, the resultant judgment would nevertheless be the judgment of a Division Bench only, since the three members cannot be considered to constitute the Larger Bench; and (b) a Larger Bench consisting of three Members constituted to deliberate on an issue would be a Larger Bench in effect and reality since there would be simultaneously application of mind (by the three members) on arguments addressed before such Larger Bench. 10. According to Revenue only a duly constituted Larger Bench must be considered the Larger Bench but where a judgment is the culmination of a reference arising from a conflict of opinion in a Division Bench and eventually resolved by third member, such judgment must be considered a judgment of a Division Bench only. Alternatively, it is contended on behalf of Revenue, that since a larger bench is constituted by an order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 in according with s. 259. There is no difference, really speaking, between a Full Bench of three judges sitting together and this method of referring to the third judge in the case of a difference of opinion between the two judges. Whether the first method is adopted or the second, 'opinion of the majority' will be decisive. In this case, there is a formal reference to a third judge to ascertain his opinion. His is the deciding voice. He turns the scales. The third judge is the Full Bench. Not alone. But along with the two others who first heard the case. Whether the three judges sit at the same time or at different times-two at one time, and the third hearing the matter later on a difference of opinion does not make much difference. As has happened in this case, the two judges have differed. So the case has come to me, the third judge. The two judges have expressed their opinion. I am now called upon to give my opinion. The opinion of the majority will prevail. All that happens is that the third is segregated from the two and does not sit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the conflict is referred to a third member of this Tribunal for resolution, the resultant judgement must be considered a the judgement of a full Bench, as if it were a judgement of a Larger Bench (three ld. Member) sitting en banc. 15. Pursuant to the aforesaid analysis, since there is a conflict of opinion between Larger Bench decisions of this Tribunal Jyoti Ltd; Indian Oil Tanking Ltd. and BSBK Pvt. Ltd., we consider it appropriate that in the interests precedential coherence, the issue whether a composite contract, involving transfer of property in goods and services which is taxable only from 1.6.2007, onwards and not earlier thereto, in view of the provisions of Section 65(105)(zzzza), could be vivisected and service components of such composite contract could subjected to tax by classification of such service components under other pre-existing taxable services such as commercial or industrial construction service or erection, installation and commissioning service, construction of residential complex service etc. for the period prior to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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