2007 (7) TMI 141 - HC - Customs

An advocate appearing in a case, cannot be forced to give evidence in respect of his actions as an advocate on behalf of client In respect of arguments presented by him before adjudicating authority, he cannot be summoned for cross-examination u/s 108 of Customs Act

Summary

Issues:
1. Whether a lawyer can be cross-examined in departmental proceedings for filing argument notes as counsel for a client under Section 124 of the Customs Act.
2. Validity of the order allowing cross-examination of the lawyer by the Appellate Authority.
3. Legality of the summons issued to the lawyer under Section 108 of the Customs Act.

Analysis:

1. The petitioner, a lawyer, challenged the order allowing cross-examination in departmental proceedings for filing argument notes under Section 124 of the Customs Act. The petitioner contended that as an advocate, he cannot be forced to give evidence regarding his actions on behalf of a client. The court held that an advocate presenting arguments before the adjudicating authority cannot be summoned for cross-examination under Section 108 of the Customs Act. The court emphasized the principle that an advocate's actions in representing a client should not subject them to cross-examination in such proceedings.

2. The Appellate Authority had allowed the 3rd respondent to cross-examine the petitioner based on argument notes. The court observed that the 3rd respondent's entitlement to cross-examine the petitioner was based on the argument notes used to issue a show cause notice. However, the court ruled that an advocate's submission of argument notes should not be a basis for action against the client. The court quashed the order directing the summoning of the petitioner, highlighting that the 3rd respondent could challenge the argument notes' validity in the adjudication proceedings.

3. The 3rd respondent argued that since the show cause notice was issued based on the petitioner's argument notes, he was entitled to cross-examine the petitioner. The court noted the conflicting positions between the parties regarding the necessity of summoning the petitioner. Ultimately, the court held that the petitioner, acting as an advocate, should not be compelled to provide evidence regarding his actions in representing a client. The court emphasized that the final decision in the adjudication proceedings should be based on the law and evidence presented, not on the advocate's role in presenting arguments.

In conclusion, the court allowed the writ petition, quashing the order allowing cross-examination of the petitioner and declaring that the petitioner cannot be compelled to be cross-examined in departmental proceedings for filing argument notes as counsel for a client under Section 124 of the Customs Act.