The appointment rules for special counsels were found to be in line with the provisions of the Customs Act, 1962 and Central Excise Act, 1944, and the presumption of constitutionality of enactments was upheld.

1. An advocate enrolled in the Karnataka State Bar Council on 04.08.2006 and a legal practitioner has presented this petition as a Public Interest Litigation, on 20.11.2014, calling in question the endorsement dated 29.08.2006, Annexure-B on the assertion that no minimum qualification is provided for in the matter of appointment as special counsel, while, the only criterion is that the special counsel must be a retired officer from the department having experience in indirect taxation. Grounded on the contention that in the absence of necessary guidelines, Rule 9 of the Customs (Appeals) Rules, 1982 is ultra vires Customs Act, 1962 and Rule 12 of the Central Excise (Appeals) Rules, 2001 is ultra vires Central Excise Act, 1944, has sought the following reliefs:

(i) setaside the impugned endorsement bearing F.No.278A/86/2004Legal dated 29.08.2006, produced as Annexure-B;

(ii) Declare that Rule of Customs (Appeals) Rules, 1982 is ultra vires Customs Act, 1962 and Rule 12 of Central Excise (Appeals) Rules, 2001 is ultra vires the Central Excise Act, 1944;

(iii) Frame guidelines for regulating the conduct of special counsels;

2. In the first place, this petition presented eight years after issue of the endorsement, Annexure-B impugned, is liable to be rejected at the threshold, on inordinate delay and laches.

3. On the merit of the matter, it is asserted that the Central Board of Excise and Customs (for short ‘CBEC’) is a nodal national agency responsible for administering Customs, Excise, Service Tax and Narcotics. The function of the erstwhile Central Board of Revenue, under the Central Boards of Revenue Act, 1963, was entrusted to the Central Board of Direct Taxes and Central Board of Excise and Customs, while all other matters were entrusted to the Central Board of Excise and Customs. It is said that, the Customs and Excise Department fall under the Department of Revenue, Ministry of Finance, Government of India staffed with officers of the Indian Revenue Service and those selected through departmental examinations; the CBEC is entrusted the task of formulation of policy concerning levy and collection of customs and central excise duties and service tax, prevention of smuggling and administration of matters relating to customs, central excise, service tax and narcotics; and is the administrative authority for its subordinate organizations including Custom Houses, Central Excise and Service Tax Commissionerates and Central Revenue Control Laboratory.

4. According to the petitioner, the endorsement, Annexure-B, dated 29.08.2006 was issued to create a panel of special counsel to represent Customs and Central Excise Department before the departmental officers and before Custom Excise & Service Tax Appellate Tribunal (‘CESTAT’ for short), in disputes, involving substantial questions of law and thereafter, by letter dated 28.04.2010 the tenure of special counsel was extended, while, by letter dated 15.11.2011 a fresh panel of senior and junior standing counsel was constituted for handling indirect taxation cases before the High Court and by communications dated 13.09.2012; 21.11.2012; 07.03.2014 and 17.04.2014 there were empanelment of special counsel.

5. In order to appreciate the submissions of the learned Counsel for the petitioner, it is useful to extract Section 146A of the Customs Act, 1962 and Section 35Q of the Central Excise Act, 1944 providing appearance by authorized representatives, which runs thus:

146A. Appearance by authorized representative.—

(1) Any person who is entitled or required to appear before an officer of customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under section 108 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.

(2) For the purpose of this section, “authorised representative” means a person authorized by the person referred to in subsecti