2005 (11) TMI 20 - HC - Central Excise

Central Excise - The Advocate-on-Record has authority to engage Counsel for argue on behalf of client and for that purpose no separate Vakalatnama is required to be filed by client in favour of Counsel - Such counsel is not designated as a Sr. Advocate under the Advocate Act

Summary

Issues:
1. Interpretation of the requirement for a Counsel to file Vakalatnama in order to argue a case.
2. Authority of the Advocate-on-Record to engage a Counsel for representing a client.
3. Failure of the Tribunal to distinguish between the roles of Advocate-on-Record and the Counsel.
4. Validity of the Order passed by the Tribunal and the subsequent quashing of the same.

Analysis:
1. The judgment addresses the issue of whether a Counsel, apart from the Advocate-on-Record, should be required to file Vakalatnama to argue a case. The Court emphasizes that the Advocate-on-Record has the right to engage a Counsel to represent the client before the Tribunal. It is clarified that the Counsel is supposed to argue on behalf of the client based on the instructions of the Advocate-on-Record, and the filing of Vakalatnama by the Advocate-on-Record serves as proof of authority to represent the client.

2. The Court delves into the authority of the Advocate-on-Record to engage a Counsel for representing the client before any forum. It is highlighted that the Advocate-on-Record can instruct a Counsel without the need for a separate Vakalatnama to be executed by the client in favor of the Counsel. The judgment underscores that any member of the legal profession can appear before a forum to represent a client based on the Vakalatnama executed in favor of the Advocate-on-Record.

3. The Court criticizes the Tribunal for failing to consider the distinct roles of the Advocate-on-Record and the Counsel representing a party in a legal matter. It is noted that the Tribunal did not appreciate the separate functions of these legal professionals. The judgment emphasizes the importance of understanding the division of responsibilities between the Advocate-on-Record and the Counsel in representing a client before any forum.

4. The validity of the Order passed by the Tribunal on 4th October, 2005 is questioned, leading to its quashing by the Court. The Court directs the Tribunal to allow the Counsel to appear and argue on behalf of any party, subject to the filing of Vakalatnama by the Advocate-on-Record instructing the Counsel. Additionally, the judgment states that the designation of the Counsel as a senior Advocate under the Advocates Act is not a prerequisite for allowing representation.

In conclusion, the Writ Petition is allowed, and there is no order as to costs. All parties are instructed to act on a Xerox signed copy of the dictated order.