Whither CESTAT?
JANUARY 16, 2021
By B N Gururaj, Advocate
CORONA pandemic has affected every walk of life during the last ten months. From the poorest street people to the holders of highest offices in the country, the pandemic has spared none. Even if the pandemic did not infect 1.3 billion Indians, it has certainly disrupted everyone's life as never before. Many things have changed fundamentally, and perhaps won't return to status qua ante that prevailed before 24th March 2020. Judiciary, legal profession and litigants have shown remarkable adaptability to this changed circumstance. Video hearings have become the order of the day, though physical hearings do take place occasionally. Clients find it convenient to consult counsels through meeting applications and save time on commuting to the counsel's office. Legal profession, though perceived to be staid and rather old fashioned, too has adapted to the changed situation and to technology as an alternative to winding up the practice.
From the number of judgments of all the high courts and the Supreme Court which are reported, it would seem that the pace of adjudication in the superior courts has only marginally slowed down. Compared to the despondent situation which prevailed during the lockdown, superior courts are carrying on the business of deciding the cases briskly. Even trial courts are conducting hearings regularly.
As a person practising in the field of indirect taxes, I am forced to ponder over how dispute resolution is happening in this branch of law. Thanks to the CBIC circular making it mandatory to conduct hearing through video conferencing facilities or internet apps, hearings of some original proceedings and hearings before the first appellate authorities do take place.
On the other hand, Hon'ble CESTAT has not shown any inclination to resume its judicial functions with full vigour. After issuing the CESTAT Public Notice No. 1/2020, dated 30.6.2020 which laid down the detailed procedure for the conduct of video hearings, not much seems to have happened, though some judgments do get reported. Speaking for myself, I have not appeared for a single hearing before the CESTAT during the last eleven months.
The Circular lays down a complex procedure for bringing up a matter which the litigant considers as urgent. Request for hearing may or may not be entertained at the discretion of the Registry or the Hon'ble Members. As it stood prior to the commencement of the pandemic, many Benches of the CESTAT had become dysfunctional due to chronic shortage of Technical Members. Disposal by Benches comprising of visiting Technical Members was hardly a substitute for fully functional Benches. As a result, almost every counsel is sitting on cases which are as old as 2010 or 2011.
No doubt, until September, when the pandemic was at its worst, and new infections were touching nearly a lakh a day, extreme caution was necessary to protect everyone who was an essential part of judicial administration. Fortunately for India, the pandemic is on the decline. Number of active cases are now well below 3 lakhs in the whole country. Recovery rate has been phenomenal, at 96%.
I have also learnt that the other major tax Tribunal ITAT is functioning almost normally and has comfortably settled down to conduct hearings through video conferencing facility. So, it would seem that there is no justification for the Hon'ble CESTAT to be cocooned in the procedure laid down in the public notice referred to earlier.
Hon'ble CESTAT is a large family. Besides the Hon'ble Members and its staff and officers, it includes the counsels, litigants, the Revenue. When the normal functioning of the CESTAT is disrupted or stopped, scores of individuals, business organisations and institutions are adversely affected. There is an urgent need for the Hon'ble President of the CESTAT to review the Public Notice No. 1/2020 and reconsider opening Tribunal to function fully through video conferencing facility itself.
I would modestly place following suggestions:
1. Decision should be taken by the CESTAT to commence regular hearings through video conference in every Bench.
2. CESTAT Registries should be directed to list the cases regularly and publish the cause lists as was being done earlier, and post them on the CESTAT website latest by previous Wednesday. Perhaps the number of cases to be listed may be reduced, so as to allow for waste of time which may occur on account of connectivity problems.
3. Publishing on Wednesday is important so that the litigants and counsels have sufficient time to prepare written submissions and produce relied-on judicial precedents in advance and serve copy on the Revenue.
4. Revenue should also similarly share their written submissions, or relied-on judicial precedents with the counsel for litigants, or with the parties-in-person.
5. At the option and convenience of the Hon'ble Members, hard copies may or may not be insisted upon.
6. Where the cases are complex, and parties have to take the Bench through a mass of documents, the Benches may consider granting physical hearing. None except the Hon'ble Members, counsels and ARs need be present in the court hall. Thus, social distancing can be maintained.
When the Hon'ble Supreme Court and the High Courts have set a role model by continuing to dispense justice even during the worst period of the pandemic, it would be apt that the Hon'ble CESTAT should follow suit and resume normal functioning.
There is an old Sanskrit adage: Aalasyam hi manushyaanam shariaristho mahan ripuh - "Laziness the greatest enemy of mankind hidden within one's body". For rather too long, all of us have been guilty of indolence. It is time to get our act together and work for the cause of administration of justice.
[The views expressed are strictly personal.]
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