1. The Short issue concerned in this order is whether an advocate who has not filed his Vakalatnama can appeal before the Bench and argue the case of the appellant. The facts in this case are as follows:- 1.1 In these cases, the appellant company has filed the appeals with a Vakalatnama filed in the name of Shri B.N. Pal, Learned Advocate.
1.2 When the case came up today, Shri R.K. Chowdhury, learned Advocate along with Shri B.N.Pal appeared. Shri R.K. Chowdhury wants to argue the case for the appellants. It has been pointed out that no Vakalatnama has been filed in these cases in the name of Shri R.K. Chowdhury and as such, he cannot appear and argued the cases on behalf of the appellant company. The Bench wanted to give opportunity to boths ides on this issue before taking a decision in the matters.
2. Heard Shri R.K. Chowdhury, learned Advocate. He submits that in these cases, a Vakalatnama has been filed by Shri B.N. Pal, learned Advocate who is present here and he is not arguing the case on his behalf. In this connection, he draws attention of the Bench to Section 146A of eth Customs Act, 1962, relevant portion of which is reproduced below: - (1) Any person who is entitled or required to appear before an officer or customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under Section 108 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.
For the purpose of this section, 'authorised representative' means a person authorised by the person referred to in sub-section (1) to appeal 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 practice 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...." 2.1 Shri Chowdury, learned Advocate also submits that the above Section authorises any legal practitioner who is entitled to practice in any Civil Court in India. India is authorised to appear before the Tribunal, and hence the being an Advocate who is entitled to appear to practice in Civil Court, he can argued the matters. He further submits that by an Order No. F. 22 (1)/2004-Judl., dated 9.11.2004 issued by the Government of India, Ministry of Law of Justice, Department of Legal Affairs, he is authorised as a Senior Counsel, Group-I, for conducting the Central Government Litigation before the Hon'ble High Court of Calcutta at Kolkata for a period of three years or until further orders whichever is earlier. He also submits that he is a Page 69 member of the Calcutta Bar Library Club. As per the Rules of the said Club, he cannot file a Vakalatnama in a Court. Further, the Hon'ble Supreme Court in its Judgement in the case of Union of India v.Upper Ganges Sugar & Industries Ltd. reported in 2005 (179) ELT -277(SC), has made a distinction between 'Advocate-on-record' and 'Arguing Counsel' as contained in para 5 of the said judgement. Thus there is a distinction between the 'Advocate-on-record' and the Arguing Counsel', and as such, he can argue the matters before this Tribunal as an "Arguing Counsel'.
3. Heard Shri A. hore, learned J.D.R. for the Revenue. He submits that Shri R.K. Chowdhury, learned Advocate has not submitted his Vakalatnama. The Vakalatnama is in the name of Shri B.N. Pal. There is no evidence to show that Shri B.N. Pal has authorised Shri R.K.Chowdhury, learned Advocate to argue on his behalf. Since no Vakalatnama has been filed by Shri R.K. Chowdhury he cannot argue the matter before this Tribunal. Shri R.K.Chowdhury is not a Senior Advocate as defined in the Advocate Acts. The Senior Advocate can only be designated by the Hon'ble Supreme Curt or by any High Court. Since Shri Chowdhary has not been declared a Senior Advocate as defined in the Advocate Act, 1961 he cannot appears and argue the instant cases without a vakalatnama. He, therefore, submits that reliance by Shri Chowdhury on the order of the Ministry of Law and Justice, Department of Legal Affairs referred to above, is only limited for conducting the Central Government Litigation before the Hon'ble Calcutta High Court for a period of three years from the date of issue of the said Order.
It does not make him a Senior Advocate as required under the Advocates Act. The Rules of the Calcutta Bar Library Club are not applicable as far as the proceedings before this Tribunal are concerned in as much as, CESTAT is governed by its own Rules. The Rules of Calcutta Bar Library Club have no application as far as this Tribunal is concerned.
As regards the Hon'ble Supreme Court's judgment referred to above, it is submitted by the learned J.D.R. that as far as C.E.S.T.A.T. is concerned, there is no difference between an 'Advocate-n-record' and an 'Arguing Counsel'. Any advocate, who wants to appeal and argue his case, has to file a Vakalatnama, unless he is a Senior Advocate designated under the Advocates Act. Shri Hore, learned J.D.R. also submits that the Tribunal has its own procedure. He, further, submits that Rule 13 of the C.E.S.T.A.T. (formerly C.E.G.A.T) Procedure Rules, 1982 made it mandatory to append the documents under which a legal practitioner is authorized to appear to the Memorandum of Appeal and the said document is Vakalatnama in the case of advocates. The argument taken by the learned Advocate that any legal practitioner who is entitled to practice in Civil Court in India is not applicable to the C.E.S.T.A.T. as it is governed by its own Rules.
4. Heard both sides. The bench asked Shri R.K. Chowdhury whether he is a senior advocate, he replied that he is not a Senior Advocate under the Advocates act, 1961. But he has submitted that by virtue of Section 146A of the Customs Act, 1962, he is entitled to appear before the Tribunal. Relevant portion of Section 146A of the Customs Act, 1962 has already been Page 70 reproduced above. However, we find that the manner in which the appearance has to be made, has been prescribed by Rule 13 of the C.E.S.T.A.T. (Procedure) Rules, 1982, Which reads as follows:- "13. Document authorizing representative to be attached to memorandum of appeal - (1) Where the parties to an appeal or application are being represented in such appeal or application by authorized are being represented in such appeal or application by authorized representatives, the document authorizing such representatives to appear on their behalf shall be appended to the memorandum of appeal, application or memorandum of cross-objections if they are signed by the authorized representative and the said documents shall indicate clearly the status of the authorized representatives as to whether they are relatives or regular employees of the parties and the details of the relationship or employment or, in cases where they are not relatives or regular employees, their qualification to act as authorized representatives under the Act or, in the case of a person referred to in Rule 2(c)(ii), particulars of the notification by which he has been appointed: Provided that where the authorized representative is a legal practitioner, such document of authorization shall be a duly executed vakalatnama." For a reading of the above extract, it is clear that if an assessee is represented by an authorized representative, it is obligatory to the assessee to append the document authorizing the authorised representative to the Memorandum of appeal. It is also obligatory under the said rule to indicate the status of the person concerned. In the case of legal practitioner, it is also obligatory to append the documents authorizing him, to the memorandum of appeal. Therefore, a distinction is drawn between a legal practitioner and other authorized representative, as regards the documents under which the authorization is to be made. However, an authorized representative, irrespective of the category to which he belongs, has to append the documents under which he is authorized to appear to the Memorandum of Appeal. The expression used in the Rule is 'shall'. Therefore, it is mandatory for the authorized representative, to append the documents under which they are authorized to Memorandum of Appeal.
4.1. As far as Shri R.K. Chowdhury is concerned; he has not appended any document to the Memorandum of Appeal. Therefore, there is a non-compliance with the Rule. Consequently, he is not authorized to appear on behalf of the appellant company herein.
4.2 The main contention of Shri Chowdhury is that Section 146A of the Customs Act, 1962 should be read with the provisions of Advocates Act, 1962 and Order: III, Rules 5 of Civil Procedure Code. When it is so read, it is not necessary for him to file a Vakalatanama to a Memorandum of Appeal in terms of the provisions of Section 16, 29 and 30 of the Advocates Act, 1961, which are reproduced below: "16. Senior and other advocates. - (1) There shall be two classes of advocates namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, (standing at the Bar or special knowledge or experience in law) he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interests of the legal professions prescribe." "29. Advocates to be the only recognized class of persons entitled to practice law. - Subject to the provisions of this act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practice the profession of law, namely, advocates." "30. Right of advocates to practice. - Subject to the provision of this Act, every advocate whose name is entered in the (State roll) shall be entitled as of right to practice throughout the territories to which this Act extends, - (i) in all courts including the Supreme court; (ii) before any tribunal or person legally authorised to take evidence; and " A reading of sections 16, 29 and 30 makes it clear that a legal practitioner is an advocate and by virtue of Section 30(ii) he is entitled to practice before this Tribunal. The advocates Act, 1961 also classified the advocates into two categories Senior Advocates and Junior Advocates. Section 16 categorically says that there shall be two classes of advocates, namely, Sr. Advocates, and other advocates. The scope of the advocates Act, 1961 is confined only to the advocates and the classification of advocates and their right to practice and other matters connected thereof. It does not provide for the manner in which they are expected to appear in a Tribunal. The reason is obvious as the advocates are entitled to practice in various institutions but it is for the institution whether it is a Court or a Tribunal, to regulate the procedure or the manner in which the legal practitioners are to appear before it.
4.3 The Hon'ble Supreme Court framed rules under of India regulating the manner and procedure in which the advocates have to appear before them amongst other rules. The rules also classify the advocates into two classes - (i)) Senior Advocates and (ii) Advocates on record. A Senior Advocate is defined under the Rule 2(a) of the Supreme Court Rules and the said rule reads as follows: - "2(a). The Chief Justice and the Judges may, with the consent of the advocate, designate an advocate as senior if in their opinion by virtue of his ability, (standing at the Bar or special knowledge or experience in law) the said advocate is deserving of such distinction.
The definition of senior Advocate is similar to the definition of Senior advocate under the Advocate Act, 1961.
4.5 However, Rule 13 of the CESTAT Procedure Rules made it mandatory to append the document under which a legal practitioner is authorized to appear to the Memorandum of Appeal and the said document is Vakalatnama in the case of advocates. In other words, a senior advocate is prohibited from filing a vakalatnama under the Supreme Court Rules whereas the CESTAT Procedure Rules makes it mandatory for a legal practitioner to file a vakalatnama in the Tribunal.
4.6 We may point out that the Supreme Court Rules are framed in exercise of the powers conferred under Article 145 of the Constitution of India, whereas the CESTAT Procedure Rules are framed in exercise of the powers conferred under the Central Excise Act, 1944 and Customs Act, 1962 which are ordinary statues.
4.7. It follows from the above, that Rule 2 of the Supreme Court Rules, 1966 will prevail over Rule 13 of the CESTAT. Procedure Rules, 1982 in so far as the Senior Advocates are concerned, and consequently, the Senior Advocates need not file a Vakalatnama as they are prohibited under Rule 2 of the Supreme Court Rules.
4.8 The said prohibition applies only to senior advocates, recognized as such under the Supreme Court Rules and also under the Advocate Act, 1961, and it does not apply to advocates other than Senior Advocates.
4.9 The next question is what should be the position with regard to those legal practitioners who are not designated as Senior Advocates, either under the Supreme Court Rules or under the Advocates Rules, 1961. In this connection,, we refer to Order III, Rule 5 of the Civil Procedure Code, which reads as follows: - No person who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless he has filed in Court a memorandum of appearance signed by himself and stating - Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any other pleader who has been duly appointed to act, in Court on behalf of such party." 4.10. We also observe that Shri R.K. Chouwdury, learned Advocate has submitted that in case where a pleader is engaged to plead on behalf of any party or any other pleader who has been duly appointed to act, he nee not file a Vakalatnama. We have already pointed out that it is for the CESTAT to regulate the procedure and the manner of appearance of Page 73 a legal practitioner before it in exercise of the power conferred under Rule 13 of the CESTAT. Procedure Rules, 1982. We may refer, in this context, to Section 129C(7) of the Customs Act, 1962, which was incorporated in Section 35D of the Central Excise Act, 1944.
For better appreciation, we also reproduce hereunder, Section (7) of Section 129C, of the Customs Act, 1962:- (7) The Appellant Tribunal shall, for the purposes of discharging its functions, have the same power as are vested in a court under the Code of Civil Procedure, 1908 (5 of 1908), when trying a suit in respect of the following matters, namely: - (b) enforcing the attendance of any person and examining him on oath; (c) compelling the production of books of account and other documents; and We find that only the provisions to Section 129C(7) are applicable to CESTAT. Procedure Rules, 1982 and therefore, Order III Rule 5 of C.P.C.is not applicable to the proceedings before the Tribunal. Therefore, the other advocates namely other than Senior Advocates are not entitled to be covered by the Order III Rule 5 of CPC. Consequently, the advocate being engaged by another advocate to appear on behalf of a party, has to necessarily comply with the provisions of Rule 13 of the CESTAT Procedure Rules, 1982, and he has to file a Vakalatnama. We, therefore, find that the submission of Shri R.K. Chowdhury that he is a member of Calcutta Bar Library Club and that by virtue of the Order No.F. 22(1)/2004-Judl. Dated 9.11.2004 (referred to above), he has been empowered to appear before this Tribunal, as a Senior Advocate for conducting the Central Government litigations, are not relevant in the present cases, when a specific Rule 13 of the CESAT Procedure Rules, 1982 has been framed to deal with this very issue. Shri Chowdhury has already admitted that he is not a Senior Advocate as such, under either Section 16 of the Advocates Act, 1961 or under Rule 2 of the Supreme Court Rules (referred to above).
5. In view of this, he has to file a Vakalatnama to appear and argue on behalf of the party before this Tribunal. We may add that the Larger Bench of the Tribunal has taken a similar view in case of Bhilwara Spinners Ltd. v. Collector of Central Excise reported in 1993 (66) ELT - 643 (Tribunal). We respectfully follow the same.