2007 (12) TMI 12 - HC - Customs

Practicing by ex-members of Tribunal Prohibition on members to appear before the Tribunal as per amendment in Sec. 129 Customs Act Amendment is not retrospective so it is not justified to prohibit the persons who are practicing before the Tribunal since a long time

Summary

Issues:
Challenge to constitutional validity of Section 129(5) of the Customs Act, 1962 regarding prohibition on appearance before CESTAT post-retirement.

Analysis:
In a batch of writ petitions, the petitioners, former members of CEGAT now CESTAT, challenged the amendment to Section 129 of the Customs Act, 1962, which prohibited them from appearing before the Appellate Tribunal post-retirement. The petitioners, who had been practising before CESTAT for several years, contended that the retrospective application of the amendment was unconstitutional and irrational. The CESTAT had passed an order preventing them from appearing in their cases due to this amendment.

The High Court noted that the respondents provided no reason for introducing the challenged statutory provision. A comparison was drawn with other Tribunals like the Railway Claims Tribunal and the Central Administrative Tribunal, where similar prohibitions were part of the original statute and not introduced retrospectively. It was highlighted that the Income Tax Appellate Tribunal did not have such restrictions on former members. The Court emphasized that there was no justification for retrospectively prohibiting individuals who had practiced before the Tribunal for extended periods.

Relying on legal precedent, the Court acknowledged that statutory terms and conditions could regulate the right to practice before a Tribunal. However, in this case, the Court found no merit in retrospectively prohibiting the petitioners, allowing them to continue their practice before CESTAT. The decision of CESTAT to bar them from practising was set aside, granting relief to the petitioners. The Court clarified that the interim order did not extend to individuals appointed as members or Chairman of CESTAT after the amendment came into effect.

In conclusion, the Court disposed of the application, permitting the petitioners to practice before CESTAT and directing that the decision of CESTAT prohibiting their appearance would not be enforced.