TMI Blog2015 (3) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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. Grounded on the contention that in the absence of necessary guidelines, 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, 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& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this section, appear by an authorised representative. (2) For the purpose of this section, authorised representative means a person authorized by the person referred to in sub-section (1) to appear on his behalf, being (a) his relative or regular employee; or (b) a custom house agent licensed under section 146; or (c) any legal practitioner who is entitled to practise in any civil court in India; or (d) any person who has acquired such qualifications 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horised representative. (2) For the purposes of this section, authorized representative means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being - (a) his relative or regular employee; or (b) any legal practitioner who is entitled to practise in any civil court in India; or (c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose. (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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1949 (38 of 1949); or (b) a Cost Accountant within the meaning of the Cost and Works Accountants Act, 1959 (23 of 1959); or (c) a Company Secretary within the meaning of the Company Secretaries Act, 1980 (56 of 1980), who has obtained a certificate of practice under section 6 of that Act; or (d) a post-graduate or an Honours degree holder in Commerce or a post-graduate degree or diploma holder in Business Administration from any recognised University; or (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 U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any law for the time being in force. 7. The first submission of the learned counsel 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2)(d) r/w Rule 12(e) of the Customs (Appeals) Rules, 1982; Section 35(q)(2)(d) r/w Rule 12 (e) of the Central Excise (Appeals) Rules, 1982. 10. The submission of illogical presumption of likelihood of bias was negatived on the premise that one of the relevant factors which probably would have weighed on the mind of the legislature is the element of bias was presumptuous, more appropriately, when a member of the Tribunal over a long period and other members have been co-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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the case where a remote relationship existed, separated by six degrees, which was the foundation of challenge of selection to a post of clerk in the Gram Panchayat High School, the challenge was not sustainable. It is difficult to rule out the possibility of a reasonable apprehension in the minds of the litigants who approach the -Tribunal for justice, if the reasonable restriction introduced in Section 129(6) of the Customs Act is not enforced. Reference can be made 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 conve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res the provisions of both the Acts. In the words of the Apex Court, it is difficult to define cases where element of bias would affect the decision and where it would not by a precise line of distinction. Even in a group a person possessing special knowledge may be in a position, to influence a group and his bias may operate in a subtle manner. 13. In addition it is submitted that the decision to create a panel of special counsel from amongst retired officers of the department 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 appoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understanding, Chartered Accountants and Company Secretaries would at best be specialists in understanding and explaining issues pertaining to accounts. These issues would, fall purely within the realm of facts. We find it difficult to accept the prayer made by the Company Secretaries to allow them, to represent a party to an appeal before NTT. Even insofar as the Chartered Accountants are concerned, we are constrained to hold that allowing them to appear on behalf of a party 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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