TaxTMI 
TaxTMI 
TaxTMI 
2009 (4) TMI 13
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.... aggrieved, have laid a challenge to the said provision, broadly on two grounds. The first being, that Section 129(6) of the Customs Act is ultravires Articles 14, 19(1)(g) and 21 of the Constitution of India. The second, that, in any event, Section 129(6) of the Act has no applicability to the petitioners in view of the fact that at the time when they were appointed to CESTAT and also at a point in time when they demitted the office, the said provision was not on the statute book. In sum and substance, the petitioners contend that both on a plain reading of the provision, as also otherwise, it cannot apply to the petitioners as they cannot be bound by a conditionality of which they had no notice. 1.2 The petitioners have towards this end made the following prayers which are common to each of the captioned writ petitions: "(i) To strike down Section 129(6) of the Customs Act, 1962, as being arbitrary, illegal and unconstitutional. (ii) Consequently, to issue a writ of mandamus, or other writ, order or direction in the nature of mandamus, directing the Tribunal to permit the petition to appear and plead before it." 1.3 In addition, in writ petition 6712/2007 entitled N.K. Bajpai....
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....s-I (later called Group "A") (in short the "service") on 10.01.1957. On 29.09.1982 he assumed the charge as Member (Technical) Customs Excise and Gold (Control) Appellate Tribunal (in short "CEGAT") (as it was then known). On 01.02.1989, he was promoted in his parent cadre as Chairman, Central Board of Excise and Customs (in short "CBEC"), which is when, he relinquished charge as Member, CEGAT. On 31.01.1991 Sh. K.L. Rekhi superannuated as the Chairman of CBEC. 2.3 Sh. P.C. Jain, petitioner in writ petition 6710/2007, joined service in July, 1963. On 01.05.1986 he assumed charge as Member (Technical) in CEGAT. On 28.09.1999, when the petitioner demitted office, he was the vice-chairman of CEGAT. In the interregnum, the petitioner had also obtained a bachelors degree in law, in 1991, from University of Delhi. 2.4 Similarly, Shri. V.K. Aggarwal, the petitioner in writ petition no. 6711/2007, joined service on 13.11.1967. Shri. Aggarwal assumed charge as Member (Technical) CEGAT on 02.03.1998. On 13.05.2005 Shri. Aggarwal demitted office as a member CESTAT. Unlike others, Shri. Aggarwal had won a bachelors degree in law even before he entered service, having passed out, from Luckno....
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....fice of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate. (2A) A technical member shall be a person who has been a member of the Indian Customs and Central Excise Service, Group A, and has held the post of Commissioner of Customs or Central Excise or any equivalent or higher post for at least three years. (3) The Central Government shall appoint - (a) a person who is or has been a judge of a High Court; or (b) one of the members of the Appellate Tribunal, to be the President thereof, (4) The Central Government may appoint one or more members of the Appellate Tribunal to be the Vice-President, or, as the case may be, Vice-Presidents, thereof. (5) A Vice-President shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing. (6) On ceasing to hold office, the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal. SUBMISSIONS ON BEHALF OF THE PETITIONERS 5. In the context of the aforesaid provision, that is, sub-section (6)....
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....oners are enrolled with the Bar Council Of Delhi, they are prevented from practising their profession by virtue of the impugned provision, which is directly in conflict with their rights to practice as an advocate; before any court including the Supreme Court or any Tribunal or any person legally authorised to take evidence - as encapsulated in Section 30 of the Advocates Act, 1961 and Section 14 of the Indian Bar Councils Act, 1926. Here it is relevant to point out that the petitioners have submitted that even if it is conceded that Section 30 of the Advocates Act has not been brought into force and is thus not available to the petitioners, the provisions of Section 14 of the Indian Bar Councils Act, 1926, which is pari materia with Section 30 of the Advocates Act, 1961, provides a sufficient plank on which their challenge to the impugned provisions can be sustained. Reliance in this regard is placed on a Full Bench Judgment of the Punjab & Haryana High Court in the case of Smt. Jaswant Kaur & Anr. Vs State of Haryana AIR 1977 P&H 221. It is thus contended that the restriction contained in the impugned provision is not reasonable within the meaning of Article 19(6) of the Constitu....
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.... Tribunal" as set out in Section 2(aa) of the Excise Act and Section 65(5) of the Finance Act, 1994 which were inserted in the respective statute much prior in point of time. In other words, the arguments made is as follows: (i) The definition of Appellate Tribunal which is contained in section 2(aa) of the Excise Act was inserted in the Excise Act by Act 44 of 1980 Section 50 and Schedule V w.e.f 11.10.1982. The said definition was amended to attain its present form by substitution of the expression "service tax" in place of "Gold (Control)" by Act 32 of 2003 by Section 135 w.e.f. 14.05.2003. Similarly, the definition of Appellate Tribunal as contained in Section 65(5) was part of the parent statute, which was brought into force w.e.f. 01.07.1994. Given this position, the insertion of sub-section (6) in Section 129 of the Customs Act in May 2007 could not have telescoped, in manner of speaking, into the definition of Appellate Tribunal contained in Section 2(aa) of the Excise Act and Section 65(5) of the Finance Act, 1994, which have been on the statute book since 1982 and 1994 respectively. (ii) The petitioner thus contended that, in substance, the incongruity stands out, in a....
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....: (1997) 3 SCC 261 declared as an unconstitutional Clause 2(d) of Article 323A and Clause 3(d) of Article 323B of the Constitution which, inter alia, vested power in the Central and the State Governments to constitute Tribunals over which the Supreme Court's jurisdiction under Article 32 and that of the High Court jurisdiction under Articles 226 and 227 of the Constitution stood excluded. This led to the recommendation for repeal of CERAT Act, which was eventually brought about in 2004. 13. The learned ASG took us through the file notings of the Government of India which established that the issue of appearance by president/vice-president/members of CESTAT on demitting before the CESTAT was discussed at highest level through out 2005 till the insertion of the impugned provision in May, 2007. Towards this end, the Government of India had also sought the input of the president of the CESTAT, Justice R.K. Abhichandani, who recommended that the provisions of Section 11(c) in the repealed CERAT Act should be brought into force immediately. Inputs were also sought from the Ministry of Law as well as the Department of Personnel and Training. 14. The learned ASG also brought to our noti....
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....s untenable for the reason that the bar applied to the right to practice. It was contended that the right to practice was not a condition of service, and assuming without admitting that it was, it is well-settled that a condition of service in respect of a government servant can be changed unilaterally, as after entering service the legal relationship of a Government Servant is in the nature of a "status", the terms of which are fixed by law and not governed by the ordinary law of contract of service subsisting between a master and servant. Reliance in this regard was placed on the judgment of the Supreme Court in the case of Roshan Lal Tandon vs UOI AIR (1967) SC 1889. It was submitted that the submission of the petitioner that the impugned provision could not have retrospective operation was not tenable in view of the fact that the expression "on ceasing to hold office" in the impugned provision could only mean that henceforth those to whom the bar applied would not be allowed to practice before the CESTAT. 19. The learned ASG laid great stress on the fact that in the present time, the insertion of the impugned provision was desirable. He submitted that the impugned provision e....
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....d who best knows the public interest but the legislature unless shown otherwise-while always bearing in mind that the courts as the sentinels of the Constitution are fully empowered to defend and protect an individual's fundamental rights, if an act of the Parliament trenches upon inalienable right of an individual which are in conflict with interest of the majority. The burden is heavy. There is a presumption of constitutionality in respect of an Acts of a legislature. 21. With the aforesaid preface, let us examine the nuts and bolts of the challenge of the petitioners to the impugned provision. The challenge to the impugned provision based on petitioners rights under Article 14, 19(1)(g) and 21 of the Constitution, on a close scrutiny, according to us, is untenable. The charge of violation of Article 14 is levelled on the ground that firstly, the respondents have been unable to demonstrate either by way of Statement of Objects And Reasons or Notes to clauses or even by way of averments in their counter affidavit the evil or mischief which is sought to be remedied by insertion of the impugned provision; and secondly, the impugned provision is discriminatory, in as much as members....
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....hat there should have been some kind of empirical data to suggest that there had been instances of misdemeanour which would have propelled the respondents to insert such a provision in the enactment is based on a misappreciation of a fundamental premises that a court's authority is based on the public perception especially that of the litigants appearing before it, that the process of administration of justice is far removed, from even the remotest possibility of bias creeping into the decision making process. Therefore, to contend otherwise is to ignore the very edifice on which the administration of justice is built. 24. In our view, the purported discrimination claimed by the petitioners on account of the fact that members of tribunals such as the Income Tax Appellate Tribunal and the Appellate Tribunal for Foreign Exchange are not visited with such disability, is also untenable. The fact that a beginning has been made by incorporating such like provisions in respect of some tribunals, such as, the CESTAT, the Central Administrative Tribunal constituted under the Administrative Tribunal Act, 1985 (see Section 11(f) would only lead us to conclude that the impugned provision is n....
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....g under the Karnataka Land Reforms Act, 961. 26. In our view, the two cases cited by the petitioners are clearly distinguishable. In both the cases the court struck down the bar placed on the legal practitioners to practice before the Tribunal constituted under the concerned statutes on the ground that the prohibition was enacted by the State which trenched upon the right to practice conferred by a law enacted by the Parliament and hence the State law was bad in so far as it trenched upon the law enacted by the Parliament. In the instant case the impugned provision is incorporated in a central statute. Hence the said ratio of these aforementioned decision would not apply to the instant case. 27. The submission of the learned counsel for the petitioners that the restriction contained in the impugned provision is unreasonable and not in the interest of general public as contemplated under Article 19(6) of the Constitution, on account of the fact that petitioners who are experts in their respective fields would enhance public interest by making themselves available not only to further the cause of the assessees but also that of the Revenue. In our view this submission misses the wo....
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....e Maharastra Revenue Tribunal. "32. The next and the last question that arises is whether Section 9A of the Act is constitutionally void as it affects (i) the fundamental right of an advocate enrolled by the State Bar Council of Maharashtra to carry on his profession guaranteed by Article 19(1)(g) of the Constitution and (ii) the right of the appellants who are non-tribals being prevented to be represented by a legal practitioner of their choice. 33. The problem before us has to be viewed from two angles: first, from the view point of the legal practitioner, and secondly from that of the litigants. Though the question for consideration as to whether Section 9A of the Act offends Art. 19(1)(g) is of considerable importance to the litigant public in general, and the legal profession in particular it is no longer res integra, it being practically concluded by several decisions of the various High Courts, from both the view points noted above. Section 9A of the Act reads : 9A. Notwithstanding anything contained in this Act or any law for the time being in force, no pleader shall be entitled to appear on behalf of any party in any proceedings under this Act before the Collector, the ....
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....on is that under Article 22(1) by which an accused who is arrested and detained in custody is entitled to consult and be defended by a legal practitioner of his choice. In all other matters i.e. in suits or other proceedings in which the accused is not arrested and detained on a criminal charge, the litigant has no fundamental right to be represented by a legal practitioner. For aught we know, the legislature felt that for the implementation of the legislation, it would not subserve the public interest if lawyers were allowed to appear, plead or act on behalf of the non-tribal transferees. It cannot be denied that a tribal and a non-tribal are unequally placed and non-tribal transferee being a person belonging to the more affluent class, would unnecessarily protract the proceedings before the Collector under S. 3(1) and 4 of the Act by raising all kinds of pleas calculated to delay or defeat the rights of the tribal for restoration of his lands. The proceedings before the Collector have to be completed with sufficient despatch and the transferred lands restored to a tribal under Sub-section (1) of S. 3 and Section 4 of the Act without any of the law's delays." Also see judgment of ....
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.... upon the matter involving the aforementioned three streams of law. That being the position, the prohibition contained in the impugned provision gets attracted no sooner the person who has held the office of the president/ vice-president or a member of the Appellate Tribunal which is a common tribunal, that is, the CESTAT seeks to appear, act or plead before the CESTAT. It makes no difference that corresponding amendments have not been brought about in the Excise Act or the Finance Act, 1994, because the prohibition is not attached to the stream of law which is practiced before CESTAT. The prohibition or the bar on appearance is vis-a-vis the forum and the trigger for invoking the bar is that the person concerned should have held the office of a member, vice-president or president of the said forum. Once the right to appear, act or plead is taken away and since the same forum hears and adjudicates upon matters concerning the three streams of law, the person concerned is automatically de-barred from acting, appearing or pleading before the said forum, that is, CESTAT. 32. In this context, it would be important to also take note of the fact that the petitioners have laid stress on t....
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....ale for inserting the provision is that it would enhance public interest by strengthening the administration of justice, we would not impede the said pursuit of the legislature based on tenuous submission of the petitioners. 33. This leaves us with one petitioner, that is, Mr. K.L. Rekhi who, as indicated in the beginning, has not obtained a degree in law but was practicing before the CESTAT in his capacity as an authorised representative. As a matter of fact, the other petitioners have also made an incidental submission that no corresponding amendments have been made in the provision adverted hereinabove pertaining to the right of the authorised representative to appear for a litigant before the CESTAT. The prohibition is clearly attracted to Sh. K.L. Rekhi who demitted office as the member of then CEGAT on 01.02.1989. The petitioner Sh. K.L. Rekhi, in our view, is not in any manner constrained in making use of the experience gained by him as a member of the then CEGAT like the other petitioners. If, however, he wishes to practice as a legal practitioner, he would be required to obtain a degree in law and then be free to appear before all such forums except the CESTAT. The fact t....