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TMI Blog2015 (3) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... is a law to the contrary, and therefore a person possessing a degree in law alone is entitled to appear as "Authorized Representative", is yet another specious plea. The aforesaid provision of both the statutes permit legal practitioners to appear before officers and Appellate Tribunal as "Authorized Representative" and therefore, petitioner cannot have any grievance. A person enrolled as an advocate under the Advocates' Act, 1961 is not ipso facto entitled to a right of audience in all Courts unless Section 30 of that Act is first brought into force. A right of an advocate brought on the roles to practice is, therefore, just what is conferred on him by Section 14(1 )( a) and (c) of the Bar Council's Act, 1926. We may notice that apart from Article 22(1) of the Constitution, no litigant has a fundamental right to be represented by a lawyer in any Court, since such a right is envisaged in an accused who is arrested and detained in custody. Reference may be made to the observations of three Judge Bench decision of the Apex Court in Lingappa Pochanna Appelwar it must be presumed that the legislature understands correctly, appreciates the need of its own people, that its laws are dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Revenue Service and those selected through departmental examinations; the CBEC is entrusted the task of formulation of policy concerning levy and collection of customs and central excise duties and service tax, prevention of smuggling and administration of matters relating to customs, central excise, service tax and narcotics; and is the administrative authority for its subordinate organizations including Custom Houses, Central Excise and Service Tax Commissionerates and Central Revenue Control Laboratory. 4. According to the petitioner, the endorsement, Annexure-B, dated 29.08.2006 was issued to create a panel of special counsel to represent Customs and Central Excise Department before the departmental officers and before Custom Excise & Service Tax Appellate Tribunal ('CESTAT' for short), in disputes, involving substantial questions of law and thereafter, by letter dated 28.04.2010 the tenure of special counsel was extended, while, by letter dated 15.11.2011 a fresh panel of senior and junior standing counsel was constituted for handling indirect taxation cases before the High Court and by communications dated 13.09.2012; 21.11.2012; 07.03.2014 and 17.04.2014 there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continues in the case of a person referred to in clause (c). (5) If any person,- (a) who is a legal practitioner, is found guilty of misconduct in his professional capacity by any authority entitled to institute proceedings against him, an order passed by that authority shall have effect in relation to his right to appear before an officer of customs or the Appellate Tribunal as it has in relation to his right to practise as a legal practitioner; (b) who is not a legal practitioner, is found guilty of misconduct in connection with any proceedings under this Act by such authority as may be specified by rules made in this behalf, that authority may direct that he shall thenceforth be disqualified to represent any person under sub-section (1). (6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions, namely:- (a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard; (b) any person against whom any such order or direction is made may, within one month of the making of the order or direction, appeal to the Board to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fessional capacity by any authority entitled to institute proceedings against him, an order passed by that authority shall have effect in relation to his right to appear before a Central Excise Officer or the Appellate Tribunal as it has in relation to his right to practise as a legal practitioner; (b) who is not a legal practitioner, is found guilty of mis -conduct in connection with any proceedings under this Act by the prescribed authority, the prescribed authority may direct that he shall thenceforth be disqualified to represent any person under sub-section (1). (6) Any order or direction under clause (b) of sub-section (4) or clause (b) of sub-section (5) shall be subject to the following conditions, namely:- (a) no such order or direction shall be made in respect of any person unless he has been given a reasonable opportunity of being heard; (b) any person against whom any such order or direction is made may, within one month of the making of the order or direction, appeal to the Board to have the order or direction cancelled; and (c) no such order or direction shall take effect until the expiration of one month from the making thereof, or, where an appeal has been prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a person who has acquired any of the following qualifications namely:- (a) a Chartered Accountant within the meaning of the Chartered Accountants Act, 1949 (38 of 1949); or (b) a Cost Accountant within the meaning of the Cost and Works Accountants Act, 1959 (23 of 1959); or (c) a Company Secretary within the meaning of the Company Secretaries Act, 1980 (56 of 1980) who has obtained a certificate of practice under section 6 of that Act; or (d) a post-graduate or an Honours degree holder in Commerce or a post-graduate degree or diploma holder in Business Administration from any recognised university; or (e) a person formerly employed in the Department of Customs and Central Excise or Narcotics and has retired or resigned from such employment after having rendered service in any capacity in one or more of the said departments for not less than ten years in the aggregate. Explanation. - In this rule " recognised University" means any of the Universities specified below, namely:- I. Indian Universities Any Indian University incorporated under any law for the time being in force in India II. Rangoon University; III. English and Welsh Universities The Universities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust, Pradip vs. Their Workmen 1997(1) SCR page 537. 8. The next submission is that Rule 7 of the Bar Council of India Rules restricts an officer, after retirement, if enrolled as an advocate, to practice in all the judicial, administrative Courts/Tribunals presiding over by the officer equivalent or lower in post which such officer last held, regard being had to safeguarding the independence of the judiciary and to remove any apprehension of prejudice and bias, hence the endorsement, Annexure-B not providing such safeguards is arbitrary and illegal. Elaborating on the same by way of illustration, learned counsel submits that a retired officer of the department and the technical member of CESTAT and other quasi judicial authorities, if appointed as special counsel and appear before the Presiding Officer, their junior in service, creates an apprehension of pre judice and bias. Reliance is placed upon paragraph 30 of the decision of the Apex Court in N.K.Bajpai vs. Union of India (UOI) & another AIR 2012 SC 1310 . 9. In the first place, the facts in N.K.Bajpai's case are that the act of the legislature inserting subsection (6) to Section 129 of the Customs Act, 1962 as introduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bias, there is a legitimate expectation on the part of a litigant before the Tribunal that there shall not be any possibility of justice being denied or being not done fairly. These are the concepts which are very difficult to be defined and demarcated with precision. Some element of uncertainty would be prevalent. There can be removal of doubts to the facts of a given case that would help in determining matters with somewhat greater uncertainty. The contention of the petitioners that there has to be empirical data to suggest their practice before the Tribunal resulted in instances of misdemeanor which would have propelled the respondents to insert such a provision in the enactment, has rightly been rejected by the High Court. It may not even be proper to introduce such amendments with reference to any data. Suffice it -- to note that these amendments are primarily based upon public perception and normal behaviour of an ordinary human being. It is difficult to define cases where element of bias would affect the decision and where it would not, by a precise line of distinction. Even in a group, a person possessing a special knowledge may be in a position to influence the group and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al." 12. Examined in the aforesaid light, the claim of the petitioner of apprehension of bias cannot be applied in its stricto sensu . Firstly, the bar of members of CESTAT from representing before the said Tribunal on retirement or resignation is in Section 129 (6) of the Customs Act, which cannot be equated or said to be on par with the officers of the department after their retirement or resignation. They in-fact, form a different class. Secondly, Sub Section (3) of Section - 146A of Customs Act, 1962 and Sub Section (3) of Section 35Q of Central Excise Act 1944, restricts a member of the Indian Customs and Central Excise Service - group 'A' on retirement or resignation after having served for not less than three years in any capacity, from appearing as an authorized representative, in any proceeding before a Central Excise Officer for a period of two years from the date retirement or resignation.. Thirdly, the possibility of bias or likelihood of bias must be shown to be present, while, what is canvassed is a mere suspicion of bias which could hardly be a foundation for further examination of the action. In the circumstances, Group 'A' officers on retireme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Tribunal Act, 2005, only on a substantial question of law. The submission that CESTAT hears appeals only on substantial question of law involving a mix of various laws is without merit. 16. In fact, in Madras Bar Association case, the Apex Court at paragraphs 120 and 121 observed thus: "120. It is apparent from the compilation extracted hereinabove, that the Members of NTT would most definitely be confronted with the legal issues emerging out of Family Law, Hindu Law, Mohammedan Law, Company Law, Law of Partnership, Law related to Territoriality, Law related to Trusts and Societies, Contract Law, Law relating to Transfer of Property, Law relating to Intellectual Property, Interpretation of Statutes, and other Miscellaneous Provisions of Law, from time to time. The NTT besides the aforesaid statutes, will not only have to interpret the provisions of the three statutes, out of which appeals will be heard by it, but will also have to examine a challenge to the vires of statutory amendments made in the said provisions, from time to time. They will also have to determine in some cases, whether the provisions relied upon had a prospective or retrospective applicability. 121. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to regulate the conduct of special counsel as has been done by the three Judge Bench of the Apex Court in C.Venkatachalam vs. Ajitkumar C. Shah (2011) 9 SCC 707, in the matter of non advocates appearing without accreditation in disputes before the Consumer Fora under the Consumer Protection Act, 1986. 20. In that case, the Apex Court observed that 'agent' as defined under the Consumer Protection Rules, 1987, was permitted to appear as 'Authorized Agent' not inconsistent with Section 33 of the Advocates' Act, 1961, while the legislature had in its mind that most of the cases before the Consumer Forum are small cases of relatively poor people where legal intricacies are not involved and great legal skills are not required and; a large number of litigants may not be able to offer heavy professional fee on trained advocates. 21. In the aforesaid context, the Apex Court directed the National Commission to frame comprehensive rules regarding appearance of agents, representatives, registered organizations and/or non advocates appearing before the forum covering their qualification, conduct and ethical behaviour , while making certain suggestions, in addition, to res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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