Who can represent the Department before CESTAT?
IN the CESTAT, lawyers, CAs, consultants, employees of firms etc appear for the assessee litigants as authorised representatives. And for the department, authorised representatives of various ranks from Superintendent to Commissioner are posted in the Tribunal. Apart from this, sometimes, officers from the Commissionerates appear as authorised representatives.
As per Rule 2 (c)(ii) of the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982,
Authorised representative in relation to any proceedings before the Tribunal means, - "a person duly appointed by the Central Government or by an officer duly authorised in this behalf as authorised representative to appear, plead and act for the Commissioner or Administrator, in such proceedings"
DDT 1682 - 30.08.2011, asked,
But has the Government or an authorised officer ever appointed an ‘authorised representative'? They are routinely posted by the Board in routine transfer orders. Are they really authorised representatives?
Recently, the Board received a reference to empower the Principal Chief Commissioners of Customs, Central Excise & Service Tax / Chief Commissioners of Customs, Central Excise & Service Tax to authorize officers from their zone to appear before the Bench of CESTAT.
By a complicated and wrong reference to certain statutory provisions, the Board clarifies that:
The provisions of the Section 35Q of the Central Excise Act and Section 146A of Customs Act entrusts the appellant Commissioner to authorize his officer to plead before any Central Excise/ Customs Officer or CESTAT on his behalf.
Further in terms of clause (ii) of rule 2(c) of the CESTAT Procedures Rules, a person duly appointed by the Central Government or by an officer duly authorised in this behalf as authorised representative to appear, plead and act for the Commissioner or Administrator, in adjudication as well as appeal proceedings. (Please note that this sentence is incomplete.)
In view of above, Chief Commissioners are already empowered under the provisions of Section 35Q and Section 146A of Customs Act read with clause (ii) of rule 2(c) of the CESTAT (Procedures) Rules, 1982 to authorize a jurisdictional officer to appear before the CESTAT Bench for pleading a case on behalf of the department.
Board takes strength from some irrelevant words it has extracted from Section 35Q.
"shall be qualified to represent any person under sub-section (1), for all times in the case of a person referred to in clause (a), and for such time as the [Principal Commissioner of Central Excise or Commissioner of Central Excise] or the competent authority under the Customs Act, 1962 or the Gold (Control) Act, 1968, as the case may be, may, by order, determine in the case of a person referred to in clause (b), and for the period during which the insolvency continues in the case of a person referred to in clause (c)."
This refers to disqualification of certain persons like those dismissed from Government service, those convicted and those who are insolvent. Board thinks this is the provision that confers authority on the Chief Commissioners to appoint authorised representatives before the Tribunal. In extracting Section 35Q, they missed some parts perils of copy and paste! And normally there is nothing like a second check of the LAWS made by the Board.
The Board is totally confused about its own laws and the clarification depends on all wrong premises. Even the extract of the statutory provisions is wrong! They are not sure how to appoint authorised representatives to represent their cases before the Tribunal. It is a miracle that they still win some cases.
Before they embark on their mega adventure of GST, they should seriously consider appointing a few proof readers and English teachers in the Board. And don't copy, if you don't know how to paste.
CBEC Instruction in F. No.390/Misc./69/2015-JC., Dated: December 15, 2015