By TIOL News Service

BANGALORE, MAR 23, 2015: THIS is a Writ Petition filed by an Advocate enrolled in Karnataka State Bar Council. The Petitioner's grievance is against the endorsement dated 29.08.2006 which 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). According to the Petitioner, Rule 9 of the Customs (Appeals) Rules, 1982 is ultra vires Customs Act, 1962 and Rule 12 of the Central Excise (Appeals) Rules, 2001 is ultra vires Central Excise Act, 1944 as no minimum qualification is provided for in the matter of appointment as special counsel, while, the only criterion is that the special counsel must be a retired officer from the department having experience in indirect taxation.

Before proceeding on merits, the High Court observed that the petition was presented eight years after issue of the endorsement dated 20.08.2006 and is liable to be rejected at the threshold, on inordinate delay and laches .

Even on merits, the High Court held that the Petition is not maintainable by observing inter alia that:

The submission 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 provisions 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.

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, much less , adversely. 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.

(See 2015-TIOL-703-HC-KAR-CX)