CESTAT Needs a Regular President -Immediately
PRESIDENT of the Tribunal Justice Goda Raghuram retired on 3rd March 2016 and since then, there is no President and the work in CESTAT has virtually come to a standstill or will soon.
As per Section 129(1) of the Customs Act, The Central Government shall constitute an Appellate Tribunal to be called the Customs, Excise and Service Tax Appellate Tribunal consisting of as many judicial and technical members as it thinks fit to exercise the powers and discharge the functions conferred on the Appellate Tribunal by this Act.
As per Section 129C(1), The powers and functions of the Appellate Tribunal may be exercised and discharged by Benches constituted by the President from amongst the members thereof.
As per Section 129(5), A Vice-President shall exercise such of the powers and perform such of the functions of the President as may be delegated to him by the President by a general or special order in writing.
Now there is a sort of constitutional crisis in the CESTAT.
Only the President can constitute the Benches (Roster). A Vice-President can exercise such powers as may be delegated by the President. There is no Vice-President for the Tribunal and of course as of now no President. So there is nobody to constitute the benches. Some new Members have joined but they cannot sit in the Benches in the absence of a roster by the President. Only those Benches constituted by Justice Raghuram before his retirement can function.
A sad state for a tribunal with over a lakh of cases pending to see Members sitting idle for want of a roster and a President.
See how badly the law was drafted. The Vice-President can exercise only those powers which the President delegates. What will happen if the President suddenly dies or becomes sick without bothering to delegate some of those powers to the Vice-President? And what happens if the President dies, falls sick or retires, when there is no Vice-President? And what would happen if the duly delegated Vice-President dies, retires, resigns or falls sick? The Vice-President does not have the power to delegate. No doubt, they can always have more than one Vice President.
They could have simply made a provision to appoint the senior-most Member as Acting President till a regular President joins. It appears now they don't want to make the senior-most Member even as the Head of the Department.
There is another problem. Anti Dumping Appeals can be heard only by a Special Bench constituted by the President of the Appellate Tribunal and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member.
Any way the present position is that no Bench can be constituted, let alone a special bench for anti dumping appeals.
The Government knew three years ago that Justice Raghuram would retire in March 2016. Couldn't they find a successor much before his retirement? In fact, it would be better to appoint the prospective President as Vice-President three months before the retirement of the President; allow him to have a feel of the Tribunal and then he can take over when the President retires.