(1.) THE matter is referred to us by the order of reference dated 21.10.2010 in Miscellaneous Order No. 608/2010. Reference was made at a point of time when the decision of the Larger Bench of the Tribunal in Aggarwal Colour Advance Photo System reported in, 2011 (23) STR 607 (Tri. - Bang.) was pending consideration of the Larger Bench of the Tribunal. The Larger Bench in Aggarwal Colour Advance Photo System reported in, 2011 (23) STR 608 (Tri. - LB) answered the reference by holding that; (a) for the purposes of Section 67 of the Finance Act, 1994 (the Act), the value of services in relation to photography would be the gross amount charged including the cost of goods and materials used and consumed in the course of rendering such service; the cost of unexposed film etc. would stand excluded in terms of Explanation to Section 67, if sold to the client; and (b) that the value of other goods and material, if sold separately would be excluded under exemption Notification No. and the term 'sold' appearing thereunder has to be interpreted using the definition of 'sale' in the Central Excise Act, 1944 and not as per the meaning of "deemed sale" under Article 366(29A)(b) of the Constitution.
(2.) IN the present appeal (wherein the order of reference is made), the taxable service in issue is not photography service but repair and maintenance service. The dispute arose in the context of the assessee claiming benefits under Notification No. dated 20.6.2003. While the assessee claims benefits of exemption Notification No. , for excluding the cost of the goods sold or deemed to have been sold to the service recipient; Revenue premised that the benefit of Notification No. must be confined to sale of goods, excluding "deemed sale" i.e. the value of goods incorporated into a composite transaction involving service and sale. This is the competing position between the parties which has resulted in the order of reference; and at a point when the decision of the larger bench was not pronounced.
(3.) THE learned Departmental Representative is agreed that the judgment of the Delhi High Court and the other judgments of the Supreme Court which have clarified the distinct loci of taxability of service and of sale of goods in the context of provisions of the Act and of sales tax legislations, considered within the overarching constitutional allocation of discrete legislative powers, to the Union and State legislatures, ought to be considered, without treating the Larger Bench decision in Aggarwal Colour Advance Photo System as providing a quietus to the complex matrix of issues, of taxability of goods and services.