The issue before the High Court was in respect of 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 had sought to debar all
such like persons, by insertion of Ss.(6) to S. 129 of the Customs Act, 1962.
The aid provision was introduced by S. 110 of the Finance Act 2007 w.e.f.
11-5-2007.
The petitioners being aggrieved, have challenged the said
provision, on grounds that S. 129(6) of the Customs Act is ultra vires
Articles, 14, 19(1)(g) and 21 of the Constitution of India. Secondly that, in
any event, S. 129(6) of the Act has no applicability to the petitioners in
view of the fact that at the time when they were appointed to CESTAT and also
at a point in time when they demitted the office, the said provision was not
on the statute book.
The High Court observed that there was a time when a son
would appear in the court presided over by his father and no questions were
asked. The validity of a statute cannot be judged on the basis of rights of an
individual when an individual’s rights are pitted against a greater public
weal. Indi-vidual rights have to give way to a greater public interest.
The charge of violation of Article 14 was levelled on the
ground that provision was discriminatory, inasmuch as members of other
Tribunals, such as, the Income-tax Appellate Tribunal and the Appellate
Tribunal for Foreign Exchange were not barred from appearing, acting or
pleading before Tribunals of which they have been members.
The Court held that 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
were not visited with such disability, was untenable. The fact that a
beginning had 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 would only conclude
that the impugned provision was not discriminatory. In the opinion of the
Court the step was taken towards insertion of the impugned provision was
reformatory and not discriminatory, as contended by the petitioners. Before
inserting the impugned provision, inputs were taken from various sources,
including the sitting president who was none else than a retired judge of a
High Court. The recommendation must have been made by a high functionary such
as the President of CESTAT, with a keen sense of responsibility after taking
into account his experience gained both on the judicial and administrative
side in the working of CESTAT.
The predominant rationale for introduction of this
provision is to strengthen the cause of administra-tion of justice then the
restriction cannot be said to be unreasonable under Article 19(6) of the
Constitu-tion. The petitioners have acquired expertise in the field of law
pertaining to customs, excise and ser-vice tax. Therefore the impugned
provision does not completely prohibit the petitioners from practising their
profession. The prohibition is with respect to a forum. The petitioners’
expertise can and is sought to be applied in superior forums, such as the High
Courts and also the Supreme Court. It would help to develop and foster entry
of fresh blood and talent at the level of the tribunals and at the same time
make available much needed expertise in the superior forums. There is no
denying that there is pauctity of lawyers who are experts in fields such as,
customs, excise and service tax in superior courts. The amendment meets
various facets of public interests and hence cannot be dubbed as one which was
unreasonably restrictive or one which completely forecloses all opportunities
available to the petitioners to exercise their profession.
There was a single tribunal, that is CESTAT which
adjudicates upon matters which pertain to customs, excise and service tax. The
members, vice-president and president are the same persons who hear and
adjudicate upon the matter involving the aforementioned three streams of law.
That being the position, the prohibition contained in the impugned provision
gets attracted no sooner the person who has held the office of the
president/vice-president or a member of the Appellate Tribunal which is a
common tribunal, that is, the CESTAT, seeks to appear, act or plead before the
CESTAT. It makes no difference that corresponding amendments have not been
brought about in the Excise Act or the Finance Act, 1994, because the
prohibition is not attached to the stream of law which is practised before
CESTAT. The prohibition or the bar on appearance is vis-à-vis the forum
and the trigger for invoking the bar is that the person concerned should have
held the office of a member, vice-president or president of the said forum.
Further there was no reason to draw a distinction between
persons who have demitted office prior to the insertion of the impugned
provision, and those who would demit office thereafter. The writ petition was
accordingly dismissed.
[ P. C. Jain v. UOI, 2009 (236) ELT 737 (Del.)
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