CIRCULAR RELATED TO POWERS OF CHIEF COMMISSIONER TO AUTHORIZE OFFICERS TO APPEAR BEFORE CESTAT BENCH.

F. No.390/Misc./69/2015-JC
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs
(Judicial Cell)

New Delhi Dated 15th December ,2015

Instruction

Sub: Authorizing officers of the Zone to appear before CESTAT Bench

A reference has been received in the Board 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.

2. In this regard attention is invited to the definition of the “authorized representative’” under sub-rule (c) of rule 2 of the Customs, Excise And Service Tax Appellate Tribunal (Procedure) Rules, 1982 (issued vide CEGAT Notification No. 1/CEGAT/82, dated 25-10-1982 as amended), which reads as under:

Definitions. – In these rules, unless the context otherwise requires, –

(c) “authorised representative” in relation to any proceedings before the Tribunal means, –

(i) a person authorised by the person referred to in sub-section (1) of section 146A of the Customs Act, or, as the case may be, sub-section (1) of section 35Q of the Central Excises Act or sub-section (1) of section 101A of the Gold (Control) Act, to appear on his behalf in such proceedings; or

(ii) 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;

Sub-section (1) of Section 35 Q of the Central Excise Act,1944 (as made applicable to service tax matters also under Section 83 of Finance Act,1994) and similar sub-section (1) of Section 146A of Customs Act,1962 reads as under:

“Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.”

And clause (a) of sub-section (2) of Section 35 Q of the Central Excise Act, 1944 (as made applicable to service tax matters also under Section 83 of Finance Act,1994) and similar sub-section (2) of Section 146A of Customs Act,1962 reads as under:

“(2) For the purposes of this section, “authorised representative” means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being-

(a) his relative or regular employee; or

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).”

3. The provisions of the Section 35Q of the Central Excise Act (as made applicable to service tax matters also under Section 83 of Finance Act,1994) and Section 146A of Customs Act,1962 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,1982, 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.

4. In view of above, Chief Commissioners are already empowered under the provisions of Section 35Q (as made applicable to service tax matters also under Section 83 of Finance Act,1994) and Section 146A of Customs Act,1962 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 . The Board has decided that where no officer is available to argue cases, based on merits of the case, the Chief Commissioner may, in such cases authorize any other officer of his zone to appear before the Tribunal.

(Rohit Singhal)

Dy. Secretary(Review)