An injustice made to Practicing Advocates in GST Act - They cannot become a Member of the Appellate Tribunal directly from the Bar.
Current provisions on Recruitment of Members to Hon'ble CESTAT' AND
The provisions in the Central Goods and Service Tax Act (CGST Act) for recruitment of Members of Appellate Tribunal
Provisions under the current CESTAT members (Recruitment and Conditions of Service) Rules, 1987
Provisions under Proposed CGST Act.
RULE 3. Qualifications for recruitment. -
(1) A person shall not be qualified for appointment as a judicial member unless-
(i) he has for at least ten years held a judicial office in the territory of India; or
(ii) he has been a member of the Indian Legal Service and has held a post in Grade I of that service or any equivalent or higher post for at least three years; or
(iii) he has been an advocate for at least ten years.
Explanation. - A For the purpose of this sub- rule,-
(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate or has held the office of a member of a Tribunal or any post, under the union or a state, requiring special knowledge of law;
(ii) in computing the period during which a person has been an advocate, there shall be included any period during which the person has held a judicial office or the office of a member of any Tribunal or any post, under or a state, requiring special knowledge of law after he became an advocate.
(2) A person shall not be qualified for appointment as a member unless he has been a member of the Indian Customs and Central Excise Service Group 'A' and has held the post of 1[Principal Commissioner or Commissioner as the case may be] of customs or Central Excise or any equivalent or higher post for at least three years.
(3) No person shall be qualified for appointment as a member of the Tribunal unless he has attained the age of 45 years.
President and Members of Appellate Tribunal, their qualification, appointment, conditions of service, etc.
CGST ACT – SEC 110. (1) A person shall not be qualified for appointment as-
(a) the President, unless he has been a Judge of the Supreme Court or is or has been the Chief Justice of a High Court, or is or has been a Judge of a High Court for a period not less than five years;
(b) a Judicial Member, unless he-
(i) has been a Judge of the High Court; or
(ii) is or has been a District Judge qualified to be appointed as a Judge of a High Court; or
(iii) is or has been a Member of Indian Legal Service and has held a post not less than Additional Secretary for three years;
(c) a Technical Member (Centre) unless he is or has been a member of Indian Revenue (Customs and Central Excise) Service, Group A, and has completed at least fifteen years of service in Group A;
(d) a Technical Member (State) unless he is or has been an officer of the State Government not below the rank of Additional Commissioner of Value Added Tax or the State goods and services tax or such rank as may be notified by the concerned State Government on the recommendations of the Council with at least three years of experience in the administration of an existing law or the State Goods and Services Tax Act or in the field of finance and taxation.
It can be seen from the above two provisions that
'An Advocate having more than 10 years of practice in any Court can become a Member of CESTAT in terms of Rule 3(1)(iii) of the CESTAT Members Recruitment Rules'.
However, under the New CGST Act, the said clause is not included. As such, practicing Advocates cannot become a direct member of the New Tribunal under CGST Law.”
One can view that not including the practicing Advocates in the CGST Act., may be an omission on the part of the Law makers Or it may be a conscious decision of the Government to omit the Advocates to become Member of Tribunals.
Practicing Advocates are qualified for recruitment of Judges to High Court and Supreme Court also.
In terms of Article 124(3) of the Constitution of India, A person shall not be qualified for appointment of as a Judge of the Supreme Court of India unless he is a Citizen of India and -
(a) Has been for at-least five years a Judge of a
High Court or of Two or more such Courts in succession; or
(b) Has been for at least ten years an advocate of a High Court of two or more such Courts in succession.
When an Advocate having more than 10 years of practice in High Court is qualified for an appointment of Judge in High Court and Supreme Court, making them not qualified to become a Member of the New Tribunal to be constituted under the new CGST Act., is not a correct move.
In as much as the High Courts and Supreme Court are superior than the Tribunals, the Central Government should have included Advocates having ten years practice in Courts' as qualified person to become Member of Tribunal in the CGST Act also'.
In view of the above, I request all the Bar Association to take up the matter with Finance Ministry to make suitable amendment in Section 110 of the CGST Act to render justice to the Advocate fraternity or Alternatively challenge the said provisions in the Court.
The author can also be reached at email@example.com