Ex-CESTAT Member practising in CESTAT – Does it not lower Stature of the ex-Member & CESTAT?
IN the year 2007, Section 129 of the Customs Act, 1962 was amended to insert a new sub-section (6) which stipulates that the President, Vice-President or other Member shall not be entitled to appear, act or plead before the Appellate Tribunal on ceasing to hold office.
We have come across a recent case where an ex-Member of CESTAT represented his client in the Bangalore Bench of the CESTAT - 2009-TIOL-1512-CESTAT-BANG. Unfortunately, neither the Bench nor the Jt. CDR who represented the Revenue raised any objection to the ex-Member representing the client in clear violation of this provision of the Statute. Incidentally, Revenue lost this case on limitation.
While there is no doubt that ex-Members are vast repositories of knowledge and their experience is unmatched, the clients hire them to represent their case not because of this knowledge or experience but because they are ex-Members of CESTAT. It is only to curb this undesirable situation affecting the stature of the ex-Members or the institution of CESTAT, the Parliament in its wisdom thought it fit to bar the Members, Vice Presidents and the President from practising in the CESTAT on ceasing to hold office (whether by resignation or retirement).
In spite of such a clear provision in the statute, ex-Members of the CESTAT blissfully ignored this provision and went about their business of representing their clients in the CESTAT. Until one fine day, the Delhi High Court in PC Jain vs. UOI 2009-TIOL-185-HC-DEL-CESTAT held that the provision barring ex-Members (Vice Presidents and Presidents included) of CESTAT from practising before the CESTAT is neither unconstitutional nor discriminatory.
Taking a cue from this judgment in 22.06.2009 we raised a pertinent question:
Do the retired Members of Tribunals need to be told by the Court or declared by the Statute that they are not eligible to practice before the respective Tribunals? When a High Court judge retires from his/her position, if they intend to practice post retirement, they do not practice before any High Court or lower Courts but appear only before the Supreme Court. This not only enhances their stature but also protects the dignity of the Judiciary and the individual alike.
We only hope that the ex-Members will refrain from appearing before the CESTAT and uphold their dignity as well as the dignity of CESTAT. Though the Delhi High Court has clearly ruled that the provision in the statute barring ex-Members is not un-Constitutional there could be situations where the Members sitting on the Bench or the Departmental Representatives may be too embarrassed in asking these ex-Members from not representing their clients before them and this should not be taken advantage of by them to pursue their cases before CESTAT.
Now what happens to a case won by a counsel who was not competent to argue the case?
Be you ever so high, yet the law is above you
Also see
1. TIOL story on April 17, 2009: 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 Court