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TMI Blog2005 (10) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... dvocate. He submits that in these cases, a Vakalatnama has been filed by Shri B.N. Pal, learned Advocate who is present here and he is not arguing the case on his behalf. In this connection, he draws attention of the Bench to Section 146A of the Customs Act, 1962, relevant portion of which is reproduced below :- "SECTION : 146A. Appearance by authorised representative. - (1) Any person who is entitled or required to appear before an officer of customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under Section 108 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative. (2) For the purposes of this section, 'authorised representative' means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being - (a) his relative or regular employee; or (b) a custom house agent licensed under Section 146; or (c) any legal practitioner who is entitled to practise in any Civil Court in India; or (d) any person who has acquired such qualifications as the Central Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a period of three years from the date of issue of the said Order. It does not make him a Senior Advocate as required under the Advocates Act. The Rules of the Calcutta Bar Library Club are not applicable as far as the proceedings before this Tribunal are concerned inasmuch as, CESTAT, is governed by its own Rules. The Rules of Calcutta Bar Library Club have no application as far as this Tribunal is concerned. As regards the Hon'ble Supreme Court's judgment referred to above, it is submitted by the learned J.D.R. that as far as CESTAT is concerned, there is no difference between an 'Advocate-on-record' and an 'Arguing Counsel'. Any advocate, who wants to appear and argue his case, has to file a Vakalatnama, unless he is a Senior Advocate designated under the Advocates Act. Shri Hore, learned J.D.R. also submits that the Tribunal has its own procedure. He, further, submits that Rule 13 of the CESTAT (formerly CEGAT) Procedure Rules, 1982 made it mandatory to append the documents under which a legal practitioner is authorised to appear to the Memorandum of Appeal and the said document is Vakalatnama in the case of advocates. The argument taken by the learned Advocate that any legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative, irrespective of the category to which he belongs, has to append the documents under which he is authorised to appear to the Memorandum of Appeal. The expression used in the Rule is 'shall'. Therefore, it is mandatory for the authorised representative to append the documents under which they are authorised to Memorandum of Appeal. 4.1 As far as Shri R.K. Chowdhury is concerned, he has not appended any document to the Memorandum of Appeal. Therefore, there is a non-compliance with the Rule. Consequently, he is not authorised to appear on behalf of the appellant-company herein. 4.2 The main contention of Shri Chowdhury is that Section 146A of the Customs Act, 1962 should be read with the provisions of Advocates Act, 1961 and Order : III, Rule 5 of Civil Procedure Code. When it is so read, it is not necessary for him to file a Vakalatnama to a Memorandum of Appeal in terms of the provisions of Sections 16, 29 and 30 of the Advocates Act, 1961, which are reproduced below :- "16. Senior and other advocates. - (1) There shall be two classes of advocates, namely, senior advocates and other advocates. (2) An advocate may, with his consent, be designated as senior advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may, with the consent of the advocate, designate an advocate as senior advocate if in their opinion by virtue of his ability, (standing at the Bar or special knowledge or experience in law) the said advocate is deserving of such distinction. (b) A senior advocate shall not - (i) file a vakalatnama or act in any court or tribunal in India;" The definition of Senior Advocate is similar to the definition of Senior Advocate under the Advocates Act, 1961. 4.4 A reading of Rule 2 of Supreme Court Rules indicates that Senior Advocate is prohibited from filing a vakalatnama in any Court or Tribunal in India. 4.5 However, Rule 13 of the CESTAT Procedure Rules made it mandatory to append the documents under which a legal practitioner is authorised to appear to the Memorandum of Appeal and the said document is Vakalatnama in the case of advocates. In other words, a Senior Advocate is prohibited from filing a Vakalatnama under the Supreme Court Rules whereas the CESTAT Procedure Rules makes it mandatory for a legal practitioner to file a Vakalatnama in the Tribunal. 4.6 We may point out that the Supreme Court Rules are framed in exercise of the powers conferred under Article 145 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al : (7) The Appellate Tribunal shall, for the purposes of discharging its functions, have the same power as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely :- (a) discovery and inspection; (b) enforcing the attendance of any person and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions." We find that only the provisions to Section 129C(7) are applicable to CESTAT Procedure Rules, 1982 and therefore, Order III, Rule 5 of CPC is not applicable to the proceedings before the Tribunal. Therefore, the other advocates namely other than Senior Advocates are not entitled to be covered by the Order III, Rule 5 of CPC. Consequently, the advocate being engaged by another advocate to appear on behalf of a party, has to necessarily comply with the provisions of Rule 13 of the CESTAT Procedure Rules, 1982, and he has to file a Vakalatnama. We, therefore, find that the submissions of Shri R.K. Chowdhury that he is a member of Calcutta Bar Library Club and that by virtue of the Order No. F. 22(1)/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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