1990 (11) TMI 283 - AT - Central Excise

Summary

Issues:
1. Requirement of separate authorization for a senior counsel in adjudication proceedings.
2. Appeal against observations made during personal hearing.
3. Maintainability of appeal and stay application.

Analysis:
1. The main issue in this case was the requirement of separate authorization for a senior counsel to represent the appellants in adjudication proceedings. The appellant argued that under Section 35Q of the Central Excises & Salt Act, a separate letter of authority from the assessee was not necessary for the senior counsel to appear during personal hearing. The appellant contended that the presence of the advocate on record sufficed, as per the provisions of the Advocates Act and the Bar Council of India Rules. The appellant sought a stay of the Collector's order, emphasizing the complexity of the case and the need for expert advice. The respondent, however, raised concerns about the maintainability of the appeal and the authorization for the appearance of the senior counsel.

2. The appeal and stay application were based on certain observations made by the Collector during the personal hearing, recorded in the context of the adjudication proceedings. The Tribunal noted that there was no specific order communicated to the appellants barring the senior counsel from representation without separate authorization. The Tribunal emphasized that treating such observations as decisions or orders could lead to endless litigation at the interlocutory stage. The Tribunal clarified that if the Collector had indeed passed a final order ex parte, the appellants had the right to challenge it before the Tribunal. The Tribunal underscored the importance of avoiding passing ex parte orders based on the requirement of separate authorization for the senior counsel when the advocate on record was already present and had filed a Vakalatnama.

3. After hearing both sides, the Tribunal concluded that the appeal and stay application were not against a quasi-judicial decision or order but were based on observations made during the personal hearing. The Tribunal highlighted that the adjudication proceedings were quasi-judicial in nature and acknowledged the need for expert advice for the assessee. The Tribunal also recognized the right of the Department to engage an advocate for assisting the adjudicating authority. Ultimately, the Tribunal disposed of the stay application and appeal, emphasizing that no separate authorization was required for the senior counsel when the advocate on record was present, and providing observations to guide future proceedings in similar cases.