TaxTMI 
TaxTMI 
2015 (3) TMI 864
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...., has sought the following reliefs: (i) set-aside the impugned endorsement bearing F.No.278-A/86/2004-Legal dated 29.08.2006, produced as Annexure-B; (ii) Declare that Rule 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; (iii) Frame guidelines for regulating the conduct of special counsels; 2. In the first place, this petition presented eight years after issue of the endorsement, Annexure-B impugned, is liable to be rejected at the threshold, on inordinate delay and laches . 3. On the merit of the matter, it is asserted that the Central Board of Excise and Customs (for short 'CBEC') is a nodal national agency responsible for administering Customs, Excise, Service Tax and Narcotics. The function of the erstwhile Central Board of Revenue, under the Central Boards of Revenue Act, 1963, was entrusted to the Central Board of Direct Taxes and Central Board of Excise and Customs, while all other matters were entrusted to the Central Board of Excise and Customs. It is said that, the Customs and Excise Department fall under the Department of Revenue, Mini....
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....ications as the Central Government may specify by rules made in this behalf. (3) Notwithstanding anything contained in this section, no person who was a member of the Indian Customs and Central Excise Service-Group A and has retired or resigned from such service after having served for not less than three years in any capacity in that service shall be entitled to appear as an authorised representative in any proceedings before an officer of customs for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person- (a) who has been dismissed or removed from Government service; or (b) who is convicted of an offence connected with any proceeding under this Act, the Central Excises and Salt Act, 1944 (1 of 1944), or the Gold (Control) Act, 1968 (45 of 1968); or (c) who has become an insolvent, shall be qualified to represent any person under sub-section (1), for all times in the case of a person referred to in clause (a), and for such time as the [Commissioner of Customs] or the competent authority under the Central Excises and Salt Act, 1944, or the Gold (Control) Act, 1968, as the case may be, may, by order, determine in the ca....
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....ntained in this section, no person who was a member of the Indian Customs and Central Excise Service - Group A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service, shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be. (4) No person, (a) who has been dismissed or removed from Government service; or (b) who is convicted of an offence connected with any proceeding under this Act, the Customs Act, 1962 (52 of 1962) or the Gold (Control) Act, 1968 (45 of 1968); or (c) who has become an insolvent, shall be qualified to represent any person under sub-section (1), for all times in the case of a person referred to in clause (a), and for such time as the [Commissioner of Central Excise] or the competent authority under the Customs Act, 1962 or the Gold (Control) Act, 1968, as the case may be, may, by order, determine in the case of a person referred to in clause (b), and for the period during which the insolvency continues in the case of a person referred t....
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....(e) a person formerly employed in the Departments of Customs or 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 of Birmingham, Bristol, Cambridge, Durham, Leeds, Liverpool, London, Manchester, Oxford, Reading, Sheffield and Wales; IV. Scottish Universities The Universities of Aberdeen, Edinburgh, Glasgow and St. Andrews; V. Irish Universities The Universities of Dublin (Trinity College), the Queen's University, Belfast and the National University of Dublin; VI. Pakistan Universities Any Pakistan University incorporated under any law for the time being in force; VII. Bangladesh Universities Any Bangladesh University incorporated under any law for the time being in force. RULE 12: Qualifi....
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....ra 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 thre....
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....members, whether, judicial or technical. Besides the possibility of bias, it was held, that there is a legitimate expectation on the part of the litigant before the Tribunal that there shall not be any possibility of justice being denied or being not done fairly. At paragraphs 35, 38, 39 and 41, it was observed thus: "35. Bias must be shown to be present. Probability of bias, possibility of bias and reasonable suspicion that bias might have affected the decision are terms of different connotations. They broadly fall under two categories, i.e., suspicion of bias and likelihood of bias. Likelihood of bias would be the possibility of bias and bias which can be shown to be present, while suspicion of bias would be the probability or reasonable suspicion of bias. The former lead to vitiation of action, while the latter could hardly be the foundation for further examination of action, with reference to-the facts and circumstances of a given case. The correct test would be to examine whether there appears to be a real danger of bias or whether there is only a probability or even a preponderance of probability of such bias, in the circumstances of a given case. If it falls in the prior ....
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....de to the judgments of this Court in the case of Manak Lal v. Dr. Prem Chand [AIR 1957 SC 425] and Rasmiranjan Das v. Sarojkanta Behera & Ors.[(2000) 10 SCC 502]. 41. The word 'bias' in popular English parlance stands included within the attributes and broader purview of the word 'malice', which in general connotation, means and implies 'spite' or 'ill will'. It is also now a well settled proposition that existence of the element of 'bias' is to be inferred as per the standard and comprehension of a reasonable man. The bias may also be malicious act having some element of intention without just cause or excuse. In case of malice or ill will, it may be an actual act conveying negativity but the element of bias could be apparent or reasonably seen without any negative result and could form part of a general public perception." 11. It is in this context that the Apex Court observed that, "it is only the mischief of likelihood of bias which is sought to be prevented by the amendment but the amendment, as a definite purpose and object to achieve which is in the high public interest. Such legislative attempt, not only to adhere to but to enha....
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....epartment to represent the department before CESTAT and other authorities, to argue on substantial questions of law without specifying the educational qualification, is in clear contrast to the observations of the Apex Court in Madras Bar Association vs. Union of India (2014)11 SCALE 166. According to the learned counsel, since advocates have requisite qualification and training to argue on substantial questions of law, a mix of various laws and not confined to one field, hence other professionals may not be so equipped to argue on such questions of law. 14. The terms and conditions for engaging retired officials of Customs & Central Excise Services as special counsels, Annexure 'B', provides for appointment of special counsels, based upon the experience in dealing with indirect taxation matters, while duties of special counsel is appearance in assigned cases of indirect taxation involving important/vexatious questions of law, classification and valuation disputes and cases involving high revenue or of a recurring nature before the Tribunal Settlement Commission and other quasi judicial authorities. 15. CESTAT would hear appeals from orders of authorities under the tw....
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....rty before NTT, would be unacceptable in law. We accordingly reject the claim of Company Secretaries, to represent a party before NTT. Accordingly the prayer made by Company Secretaries in Writ Petition (Civil) No. 621 of 2007 is hereby declined. While recording the above conclusion, we simultaneously hold Section 13(1), insofar as it allows Chartered Accountants to represent a party to an appeal before NTT, as unconstitutional and unsustainable in law. 17. Apparently, such is not the position before the CESTAT since appeals involving factual disputes require adjudication and Group-A officers of Customs and Excise Department with a minimum of 10 years experience as Special Counsel; Charter Accountant; Company Secretaries; Cost Accountants; a Post Graduate or Honours Degree holder in Commerce or a Post Graduate or Diploma holder in Business Administration, would be specialists in understanding and explaining issues pertaining to accounts. 18. In that view of the matter, 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 que....