2015 (3) TMI 864 - HC - Central Excise

Court Dismisses Petition, Upholds Rules, Rejects Bias Claims

The court dismissed the petition due to significant delay in filing, upheld the validity of Rules 9 and 12, rejected claims of bias in appointing retired ... Appointment of ex-departmental officers are Authorised Representatives before the CESTAT - Petition seeking to declare that Rule 9 of Customs (Appeals) Rules, 1982 is ultra vires Customs Act, 1962 and Rule 12 of Central Excise (Appeals) Rules, 2001 is ultra vires the Central Excise Act, 1944 - Held that:- submission of that under Section 33 of the Advocates' Act, 1961, it is only an advocate enrolled therein, unless permitted by any other law, is entitled to practice before any Court or authority and since neither Customs Act, 1962 nor the Central Excise Act, 1944 relaxes this requirement, Rule 9 of the Customs (Appeals) Rules, 1982 and Rule 12 of the Central Excise (Appeals) Rules, 2001 are ultra vires the two enactments, is but a specious plea. So also, the second submission that a person enrolled as an advocate is entitled to practice before any authority or Court, unless there 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 & others v.s . State of Maharashtra & another [1984 (12) TMI 321 - SUPREME COURT], as also Paradip Port Trust, Pradip vs. Their Workmen [1976 (9) TMI 174 - SUPREME COURT]. 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 retirement or resignation from the department when appointed as special counsel to appear as authorized representative of the department, per se, cannot be said to be in real danger of bias, but characterized as only a probability or even a preponderance of probability of such a bias, hardly affecting the decision, muchless , adversely. Fourthly, in the absence of a challenge to the Rules over legislative competence, the Rules in question primarily based upon public perception and normal behaviour of an ordinary human being cannot be said to be ultra vires the provisions of both the Acts. There can be no stress on appeals beings heard only on 'Substantial Questions of Law', so as to draw a parallel to a proceeding before the National Tax Tribunal and deny persons set out in both the Rules in question, to represent as 'Authorized Representatives' for the department. - there is always a presumption in favour of constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; it must be presumed that the legislature understands correctly, appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; and that the legislature is free to recognized degrees of harm and may confine its restrictions to those cases where the need is deemed to be clearest - Decided against Appellant. Issues Involved:1. Delay and laches in filing the petition.2. Validity of Rule 9 of the Customs (Appeals) Rules, 1982 and Rule 12 of the Central Excise (Appeals) Rules, 2001.3. Qualifications and appointment of special counsels.4. Alleged bias and prejudice in appointing retired officers as special counsels.5. Requirement for guidelines to regulate the conduct of special counsels.Detailed Analysis:1. Delay and Laches in Filing the Petition:The court noted that the petition was presented eight years after the issuance of the impugned endorsement, Annexure-B, dated 29.08.2006. Due to this inordinate delay and laches, the petition was liable to be rejected at the threshold.2. Validity of Rule 9 of the Customs (Appeals) Rules, 1982 and Rule 12 of the Central Excise (Appeals) Rules, 2001:The petitioner contended that Rule 9 and Rule 12 were ultra vires the Customs Act, 1962, and the Central Excise Act, 1944, respectively. The court found this argument to be specious. It was noted that both statutes permit legal practitioners to appear as 'Authorized Representatives,' thus the petitioner could not have any grievance. The court emphasized that a person enrolled as an advocate under the Advocates' Act, 1961, does not have an automatic right to practice in all courts unless Section 30 of that Act is brought into force.3. Qualifications and Appointment of Special Counsels:The petitioner argued that the endorsement did not specify educational qualifications for special counsels, which was contrary to the observations in the Madras Bar Association case. The court noted that the terms and conditions for engaging retired officials as special counsels were based on their experience in dealing with indirect taxation matters. It was further clarified that CESTAT hears appeals involving both questions of law and fact, and not solely 'substantial questions of law.'4. Alleged Bias and Prejudice in Appointing Retired Officers as Special Counsels:The petitioner argued that appointing retired officers as special counsels could create an apprehension of bias, especially if they appeared before their juniors. The court rejected this argument, referencing the Supreme Court's observations in N.K. Bajpai's case, which dealt with similar concerns. The court concluded that the possibility of bias must be shown to be present, and mere suspicion of bias is insufficient for further examination of the action.5. Requirement for Guidelines to Regulate the Conduct of Special Counsels:The petitioner requested the framing of guidelines to regulate the conduct of special counsels, similar to those framed by the Supreme Court in C. Venkatachalam's case. The court found that the decision in C. Venkatachalam's case, which dealt with non-advocates appearing in disputes before Consumer Fora, did not apply to the present case. The court emphasized that there is a presumption in favor of the constitutionality of an enactment, and the burden is on the petitioner to show a clear transgression of constitutional principles.Conclusion:The court found no merit in the petition and dismissed it. No order as to costs was made.