2010 (8) TMI 44

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.... Excise and Service Tax Appellate Tribunal, New Delhi (for short 'tribunal') and to clarify the 46th Constitution Amendment to the extent it has no relevance for imposition of service tax. 2. A brief narration of the facts shall subserve the purpose for adjudicating the controversy that has been highlighted before us. 3. A Division Bench of the tribunal by order dated 24th October, 2008 passed in the case of Commissioner of Central Excise, Raipur Vs. BSBK Pvt. Ltd., 2009 (13) STR 26 (Tri.-Del) referred the matter to a Larger Bench. The said reference reads as under :- "Whether service by way of 'advice, consultancy or technical assistance' in the case of turnkey contract will attract service tax will have to be determined on the fact....

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....tances of each case, services by way of advice, consultancy or technical assistance in the case of turnkey contract shall attract service tax liability.' 6. After answering the issue referred to, the Special Bench directed that the appellants' cases be sent back to the concerned Benches for disposal of the matters. 7. Be it noted, certain assessees intervened in the aforesaid referred matter. The present petitioner, namely, M/s. Larsen and Tourbo Ltd., being aggrieved by the order of the Special Bench, has preferred the present writ petition. 8. Mr. A.S. Chandiok, learned Additional Solicitor General had on earlier occasion raised a preliminary objection to the maintainability of the writ petition on two counts, namely, firstly, an ord....

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....ise submitted that the concept of locus was not the issue when the matter was debated on the earlier occasion and that apart, the same is not the preliminary objection of respondents. It is urged by them that what was objected by way of preliminary objection is in a different realm and, therefore, the decisions which have been relied upon to build the edifice of the argument are totally distinguishable. 12. To appreciate the submissions raised at the Bar, we have carefully perused the order passed by the Special Bench of the tribunal and have also perused the decisions which have been commended us to build the pyramid that the petitioner at this stage can challenge the decision under Article 226 of the Constitution of India. It is also w....