HEARING OF THE TRIBUNAL IS NOT AN APPOINTMENT

[Mr. M. GOVINDARAJAN]

            Section 86 of the Finance Act, 1994 provides for appeal to Appellate tribunal for making an appeal against an order passed by a Commissioner of Central under Section 73 or Section 83A of an order passed by a Commissioner of Central Excise (Appeals) under Section 85 within three months of the date on which the order sought to be appointed against is received by the assessee, the Committee of Chief Commissioners or the Committee of the Commissioners as the case may be.  Section 86(7) of the Finance Act, 1994 provides that in hearing the appeals and making orders under this section the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and following in hearing the appeals and making orders under the Central Excise Act, 1944.

            Section 35Q of Central Excise Act, 1944, which is applicable to service tax matters also, provides that any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings, otherwise than when required, to appear personally for examination on oath or affirmation, may appear by an authorized representative.  The 'authorized representative' means a person authorized by the person to appear on his behalf, being-

    >>  his relative or regular employee; or

    >>  any legal practitioner who is entitled to practise in any civil court in India; or

    >>  any person who has acquired such qualifications as the Central Government may prescribe for this purpose.

According to Rule 12 of Central Excise (Appeals) Rules, 2001 an authorized representative indicated in Section 35Q of Central Excise Act, 1944 shall include a person who has acquired any of the following qualifications, namely:-

    >>  a Chartered Accountant within the meaning of the Chartered Accountants Act, 1949; or

    >>  a Cost Accountant within the meaning of the Cost and Works Accountants Act, 1959; or

    >>  a Company Secretary within the meaning of the Company Secretaries Act, 1980, who has obtained a certificate of practice under section 6 of the Act; or

    >>  a post graduate or an Honors degree holder in Commerce or a post graduate degree or diploma holder in Business Administration from any recognized university; or

    >>  a person formerly employed in the Department of Customs and 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.

Rule 13 of Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982 ('Rules' for short) provides for filing of document authorizing representative along with the memorandum of appeal.  Where an authorized representative known to the Court has been engaged but is unable to file immediately the document authorizing him to appear and plead along with the appeal or application for any reason, he may file memo of appearance along with an undertaking to file duly executed vakalatnama or document of authorization during such time in the Bench may in its discretion allow.

            Rule 18 of the Rules provides that the Tribunal shall notify to the parties the date of place of hearing of the appeal or application. Rule 19 provides that on the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.

            Rule 20 provides for action on appeal for appellant's default.  Where on the day fixed for the hearing of the appeal or on any other day to which such hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Tribunal may, in its discretion, either dismiss the appeal for default or hear and decide it on merits. Rule provides that where on the day fixed for the hearing of the appeal or on any other day to which the hearing is adjourned the appellant appears and the respondent does not appear when the appeal is called on for hearing, the Tribunal may hear and decide the appeal ex parte.  Rule 24 provides that the Tribunal may, on such terms as it thinks fit and at any stage of the proceedings, adjourn the hearing of the appeal.

            Therefore the dates of hearing are fixed as per the decision of the tribunal and not at the sweet will of the parties or their representatives as held by Mumbai Bench in 'S.V. Agencies V. Commissioner of Service Tax, Mumbai' - [2009 -TMI - 34828 - CESTAT, MUMBAI]. In this case the appellant filed an appeal before the Tribunal and also filed a stay petition.  The hearing was posted on 05.05.2009.  

            The Chartered Accountant, representative for the appellant, wrote a letter dated 04.05.2009 to the Tribunal - "With reference to the above appointment I have to request your good self to adjourn the above appointment & refix the same after 15 days in the last week of May 2009 as the undersigned is not keeping well. Copy of Medical certificate is enclosed."

            On the hearing date 05.05.2009 the Tribunal adjourned the case to 12th June, 2009.  On 12.6.2009 the Tribunal received a letter from the representative of the appellant which reads as follows:

"With reference to above appointment of 12th June 2009 in continuation to my earlier letter dated 04.05.2009 duly acknowledged by your office on 04.05.2009.   I have to reiterate that in my above letter I have already very clearly mentioned that new date of hearing can be issued after 22nd June 2009 as the undersigned is not available from 1st June 2009 to 22nd June 2009 but still you have given the appointment of 12th June 2009.  Copy of the said letter filed is enclosed. Hence, once again I request you to give me any suitable date after 22nd June, 2009 (and not before that) for hearing of stay application".

            The Tribunal held as follows:

    >>  It appears that the Chartered Accountant appearing for the appellant is under impression that the proceedings before the Tribunal are in the nature of appointment for meeting with his clients or bureaucratic officers; otherwise he had no reason to refer in his letter to dates of hearing as 'appointments';

    >>  It also appears that the learned Chartered Accountant is under impression that such hearings are before the Assistant Registrar of the Tribunal;

    >>  Apart from hoping that the learned Chartered Accountant would take pains to go through the procedure prescribed for the functioning of the Tribunal, before addressing any such letter we refrain from giving any advise as such in the matter;

    >>  The learned Chartered Accountant is reminded that the dates of hearing are fixed as per the decision of the Tribunal and not at the sweet will of the parties or their representatives, of course, their convenience is certainly considered;

    >>  Once the adjournment is granted in the presence of the representative of a party and a specific date of hearing is fixed, it is necessary for the party to make necessary arrangements either to appear in person or through its representative on such date;

    >>  Merely because the representative of the appellant has chosen to have the hearing of the matter beyond a particular date that is not binding on the Tribunal;

    >>  The order passed by the Original Authority as well as the impugned order apparently disclose that the activities carried out by the appellant comprises of all essential functions which are normally performed by Clearing and Forwarding Agents.  Being so, we do not find any prima facie case as such for grant of stay of the impugned order and hence the stay application is dismissed.