1991 (2) TMI 285 - AT - Central Excise

Issues Involved:
1. Competency of an advocate engaged by a consultant to plead without filing a Vakalatnama.
2. Interpretation of Section 35Q of the Central Excises and Salt Act.
3. Applicability of Rule 13 of the CEGAT Procedure Rules.
4. Relationship between the Advocates Act and the CEGAT Procedure Rules.
5. Applicability of Order III Rule 5 of the Civil Procedure Code to Tribunal proceedings.
6. Distinction between Senior Advocates and other advocates in terms of filing a Vakalatnama.

Detailed Analysis:

Issue 1: Competency of an Advocate Engaged by a Consultant to Plead Without Filing a Vakalatnama
The primary dispute is whether an advocate engaged by a consultant can plead on behalf of an appellant without filing a Vakalatnama. The Tribunal raised this as a preliminary objection, requiring a detailed examination of the relevant legal provisions and rules.

Issue 2: Interpretation of Section 35Q of the Central Excises and Salt Act
Section 35Q allows any person entitled or required to appear before the Tribunal to do so through an "authorised representative." This includes legal practitioners who are entitled to practice in any civil court in India. The qualifications for an authorised representative are prescribed by the Central Government, including former employees of Customs, Central Excise, or Narcotics departments with at least ten years of service.

Issue 3: Applicability of Rule 13 of the CEGAT Procedure Rules
Rule 13 mandates that documents authorizing an authorised representative must be appended to the Memorandum of Appeal. Specifically, for legal practitioners, this document is a Vakalatnama. The rule uses the term "shall," indicating that this requirement is mandatory.

Issue 4: Relationship Between the Advocates Act and the CEGAT Procedure Rules
The Advocates Act defines a legal practitioner and classifies advocates into Senior Advocates and other advocates. However, the Act does not prescribe the manner in which advocates should appear before a Tribunal. This is regulated by the institution itself, in this case, the CEGAT Procedure Rules. The Supreme Court Rules, framed under Article 145 of the Constitution, classify advocates into Senior Advocates and Advocates on record, prohibiting Senior Advocates from filing a Vakalatnama.

Issue 5: Applicability of Order III Rule 5 of the Civil Procedure Code to Tribunal Proceedings
Order III Rule 5 of the Civil Procedure Code states that a pleader engaged to plead by another pleader need not file a Vakalatnama. However, the Tribunal has its own rules for regulating appearances, and Section 129C(7) of the Customs Act, incorporated into Section 35D of the Central Excises & Salt Act, specifies that only certain provisions of the Civil Procedure Code apply to Tribunal proceedings. Therefore, Order III Rule 5 does not apply to Tribunal proceedings.

Issue 6: Distinction Between Senior Advocates and Other Advocates in Terms of Filing a Vakalatnama
Senior Advocates, as defined under the Advocates Act and Supreme Court Rules, are prohibited from filing a Vakalatnama. However, other advocates must comply with Rule 13 of the CEGAT Procedure Rules, which mandates the filing of a Vakalatnama. This distinction is crucial in determining the manner of appearance before the Tribunal.

Conclusion
In the present case, Shri Sooji was duly authorized to appear by a power of attorney appended to the Memorandum of Appeal, complying with Rule 13. However, Shri Dave did not append any document, resulting in non-compliance with the rule. Consequently, Shri Dave is not authorized to appear on behalf of the appellants. The Tribunal concluded that the CEGAT Procedure Rules must be followed unless the legal practitioner is a Senior Advocate, in which case the Supreme Court Rules prevail.

Additional Observations
The Tribunal noted that there is no case law directly addressing the issue at hand. Various High Court judgments on advocates' privileges and duties were referenced, but they did not directly apply to the Tribunal's procedural rules. Therefore, the Tribunal relied on the first principles of law and the specific rules governing its proceedings.

Separate Judgments
While agreeing with the main judgment, an additional observation was made regarding the absence of precedents and the application of first principles of law. The judgment was concurred by all members, with specific emphasis on the reasoning provided in paragraph 22 of the main order.

Judgment Date: 10-1-1992 (S.V. Maruthi, Member (J))
Concurring Judgment Date: 3-2-1992 (Jyoti Balasundaram, Member (J) and N.K. Bajpai, Member (T))

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