Former Members cannot practise in CESTAT - No unregulated right of practice -

[CA.BHUPENDRASHAH]

Former Members cannot practise in CESTAT - No unregulated right of practice -
There was a time when a son would appear in court presided over by his father
and no questions were asked - Former members' writ petition dismissed: Delhi
High CourtFormer Members cannot practise in CESTAT - No unregulated right of practice -
There was a time when a son would appear in court presided over by his father
and no questions were asked - Former members' writ petition dismissed: Delhi
High Court



NEW DELHI, APR 17, 2009: IT is often said that the law acts ex-post facto. In
the instant case, the legislature has acted in pursuance of what is perceived as
undesirable - which is the right of a member/president/ vice-president of the
Customs Excise Service Tax Appellate Tribunal ('CESTAT') to appear, act and/or
plead on their demitting office before the very same Tribunal. The legislature
has sought to debar all such like persons, by insertion of sub-section (6) to
Section 129 of the Customs Act, 1962. The said provision was introduced by
Section 110 of the Finance Act, 2007 w.e.f. 11.05.2007.

Profile of the petitioners:

1. K.L. Rekhi joined Indian Customs and Central Excise Service, Class – I on
10.01.1957. On 29.09.1982 he assumed the charge as Member (Technical) in the
Tribunal. On 01.02.1989, he was promoted in his parent cadre as Chairman,
Central Board of Excise and Customs, which is when, he relinquished charge as
Member, CEGAT. On 31.01.1991 he superannuated as the Chairman of CBEC.

2. P.C. Jain joined service in July, 1963. On 01.05.1986 he assumed charge as
Member (Technical) in CEGAT. On 28.09.1999, when he demitted office, he was the
vice-chairman of CEGAT. In the interregnum, he had also obtained a bachelors
degree in law, in 1991, from University of Delhi.

3. V.K. Aggarwal joined service on 13.11.1967. He assumed charge as Member
(Technical) CEGAT on 02.03.1998. On 13.05.2005 he 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 Lucknow University in 1965.

4. N K Bajpai, entered service on 24.05.1960 with a bachelor's degree in law
having passed out from Allahabad University in 1956. He assumed charge as Member
(Technical) CEGAT on 01.11.1990, and on 07.03.1993, he demitted office as
Member.

A perusal of the above facts would show that except for Sh. K.L. Rekhi, the
other three petitioners, that is, P.C. Jain. V.K. Aggarwal, and N.K. Bajpai are
law graduates. On demitting office, it is stated that Sh. Rekhi had been
appearing for litigants before the Tribunal as an authorised representative of
his clients.

The High Court observed,

There was a time when a son would appear in the court presided over by his
father and no questions were asked. It is said Boswell earned most part of his
income at the Scottish Bar appearing before his father Lord Auchinleck

The legislative wisdom ideally caters to times we live in and the social mores
and norms that surround us. Alas! as is often found steps towards what the law
makers consider a desirable goal, which is wisdom that courts accord to a
legislature, are often agonisingly slow.

The petitioners are aggrieved and perhaps justifiably as they have been in
practice, since demitting office, for periods ranging from two(2) years in the
case of Sh. V.K. Aggarwal to sixteen(16) years, in the case Sh. K.L. Rekhi
before the date on which the impugned provision was brought on to the statute
book i.e. 11.05.2007.

But the validity of a statute cannot be judged only on the basis rights of an
individual when an individual's right are pitted against a greater public weal.
Individual rights have to give way to a greater public interest. And who best
knows the public interest but the legislature unless shown otherwise - while
always bearing in mind that the courts as the sentinel 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.

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.

Discrimination vis-a-vis ITAT: 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 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 not discriminatory.

Unconstitutional? The submission of the counsel for the petitioners is 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.
This submission misses the wood from the trees. The predominant rationale for
introduction of this provision is to strengthen the cause of administration of
justice. To remove what the legislature in its wisdom feels is a perceived class
bias. If that be so, then the restriction cannot be said to be unreasonable. It
would pass the test of Article 19(6) of the Constitution. There is no gainsaying
that the petitioners have acquired expertise in the field of law pertaining to
customs, excise and service tax. That being said the impugned provision does not
completely prohibit them from practicing their profession. The prohibition is
with respect to a forum. The petitioners' expertise can and ought to be applied
in superior forums, such as, the High Courts and also the Supreme Court.

But what about Mr. Rekhi who does not have a Law degree? The petitioner Sh. K.L.
Rekhi, 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.

No unregulated right of practice: The contention that an advocate enrolled under
the Advocates Act, 1961 has an absolute right to practise before all Courts and
Tribunals can hardly be accepted. Such a right is no doubt conferred by Section
30 of the Advocates Act. But unfortunately for the legal profession, Section 30
has not been brought into force so far though the Act has been on the Statute
Book for the last 22 years. A person enrolled as an advocate under the Advocates
Act is not ipso facto entitled to a right of audience in all Courts unless
Section 30 of that Act is first brought into force.

So all the petitions are dismissed

[bhaskar rao]

Dear Sir,

Thanks for this but does it apply to Hon'ble ITAT (income-tax) because you haad only spoken about cestat.

Please clarify position sir.

Yours faithfully,

Bhaskar Rao, ITP.

[CA.BHUPENDRASHAH]

why not?

[brett_lee38]

 i agree with CA Buphender Shah that the ruling is equally applicable to the members of ITAT becasue both are governed by same rules of servcies

[CA.BHUPENDRASHAH]

does it work?