FUTURE HEARINGS VIA VIRTUAL MADE IN INDIRECT TAXES

[Dr. Sanjiv Agarwal]

Presently when India and entire world is reeling through troubled times badly impacted by Corona virus (Covid 2019), the life has come to a virtual stand- still. In India, there is a national lockdown imposed since 25^th March, 2020 which is still continuing, though some relaxations have been granted of late. Under the lockdown, all economic, business and Government public dealing activities have come to a stand-still. This includes proper functioning of courts and Tribunals across the country.

Supreme Court Directions

Since Covid -2019 has disrupted normal functioning, Supreme Court of India in a  IN RE: GUIDELINES FOR COURT FUNCTIONING THROUGH VIDEO CONFERENCING DURING COVID-19 PANDEMIC [2020 (4) TMI 191 - SUPREME COURT] Suo moto Writ No. 5/2020 dated 06.04.2020 took cognizance of the matter suo moto in the midst of Corona pandemic and national lockdown in India 25^th March, 2020. It observed that Supreme Court and High Courts in India have adopted measures to reduce the physical presence of lawyers, litigants, court staff, para legal personnel and representatives of the electronic and print media in courts across the country and to ensure the continued dispensation of justice.

The scaling down of conventional operations within the precincts of courts is a measure in that direction. Access to justice is fundamental to preserve the rule of law in the democracy envisaged by the Constitution of India. The challenges occasioned by the outbreak of COVID-19 need to be addressed while preserving the constitutional commitment to ensuring the delivery of and access to justice to those who seek it. It observed that is necessary to ensure  compliance with social distancing guidelines issued from  time to time by various health authorities, Government of India and States. Court hearings in congregation must necessarily become an exception during this period.

The apex court in exercise of the powers conferred on the Supreme Court of India by Article 142 of the Constitution of India to make such orders as are necessary for doing complete justice, directed as under:

1. All measures that have been and shall be taken  by this Court and by the High Courts, to reduce the need for the physical presence of all stakeholders within court premises and to secure the functioning of courts in consonance with social distancing guidelines and best public health practices shall be deemed to be lawful

2. The Supreme Court of India and all High Courts are authorized to adopt measures required to ensure the robust functioning of the judicial system through the use of video conferencing technologies

3. Consistent with the peculiarities of the judicial system in every state and the dynamically developing public health situation, every High Court is authorised to determine the modalities which are suitable to the temporary transition to the use of video conferencing technologies

4. The concerned courts shall maintain a helpline to ensure that any complaint in regard to the quality or audibility of feed shall be communicated during the proceeding or immediately after its conclusion failing which no grievance in regard to it shall be entertained thereafter.

5. The District Courts in each State shall adopt the mode of Video Conferencing prescribed by the concerned High Court.

6. The Court shall duly notify and make available the facilities for video conferencing for such litigants who do not have the means or access to video conferencing facilities. If necessary, in appropriate cases courts may appoint an amicus-curiae and make video conferencing facilities available to such an advocate.

7. Until appropriate rules are framed by the High Courts, video conferencing shall be mainly employed for hearing arguments whether at the trial stage or at the appellate stage. In no case shall evidence be recorded without the mutual consent of both the parties by video conferencing. If it is necessary to record evidence in a Court room the presiding officer shall ensure that appropriate distance is maintained between any two individuals in the Court.

8. The presiding officer shall have the power to restrict entry of persons into the court room or the points from which the arguments are addressed by the advocates. No presiding officer shall prevent the entry of a party to the case unless such party is suffering from any infectious illness. However, where the number of litigants are many the presiding officer shall have the power to restrict the numbers. The presiding officer shall in his discretion adjourn the proceedings where it is not possible to restrict the number.

It may be noted that the apex court order shall apply to apex court as well as all high courts, district courts and other forms. The emphasis has been laid on ‘evidence’ which includes electronic evidence and that video conferencing may be used to record evidence. The use of technology has since been accepted by Supreme Court in THE STATE OF MAHARASHTRA VERSUS DR. PRAFUL B. DESAI AND ANOTHER [2003 (4) TMI 570 - SUPREME COURT]

CBIC Guidelines

In compliance of apex court order dated 06.04.2020 Central Board of Indirect Taxes and Customs (CBIC) issued instructions dated 27.04.2020 to all filed formations stipulating broad guidelines for conduct of personal hearings in virtual mode under the Customs Act, 1962 which would mutatis mutandis apply to Central Excise / Service Tax also.

Accordingly, such broad guidelines contemplate the conduct of personal hearing in matters of and under:

1. Customs Act, 1962
2. Central Excise Act, 1944
3. Finance Act, 1994 (Service Tax)

Conduct of virtual mode hearings shall apply to adjudication and appellate proceedings under the following quasi judicial authorities :

• Commissioner (Appeals)
• Original adjudicating authority
• Compounding authority

The underlying theme behind these guidelines is to ensure adequate safeguards and precautions to counter the challenges arising out of the Covid 2019 pandemic. The personal hearings may be carried out through VIDYO on even by whtasapp as per the guidelines issued by CBIC and Commissionerates.

Salient features of hearing by virtual mode

• Both the parties shall have to give consent to avail personal hearing through video conferencing either at the time of filing appeal or reply or immediately after issue of guidelines. Thus, if an appeal has been filed two years back, option for virtual mode may be requested now.

• Parties shall be informed of date and time of hearing along with a Video Conference (VC) link which is expected not to be shared without approval of authorities.
• The vakalatnama / power of attorney / authorization shall be accompanied by copy of photo Id and mailed to the authority on official email id.
• VC shall be held from office of authority through official VC facility
• Virtual hearing shall be conducted through applications like VIDYO or through other secured computer network. Parties should download such application and join the VC at the allotted time.
• Where parties wish to participate in hearing alongwith advocate, it should be intimated to the authority in advance. They may also join the proceedings from their own office.
• The submissions made will be reduced to writing as a record of personal hearing. The same will be sent ion PDF format within one day of hearing.
• If the same requires any modification in the content, it can be done, signed and sent back to the adjudicating authority within 3 days.
• If record of personal hearing is not sent back as such (in 3 days), it will be presumed that there is agreement with the contents and authority shall decide the case accordingly. No further modification shall be entertained after 3 days of receipt of mail by the parties.
• Such record of personal hearing shall be deemed to be ‘document’ under section 138 of Customs Act, 1962 and section 4 of Information Technology Act, 2000
• If any document is to be submitted, during the personal hearing, the same may be done by way of emailing the scanned copy of the self attested document immediately after the virtual hearing but within 3 days of the hearing, excluding the date of hearing.
• Representations of the department (respondent) may also join the personal hearing through VC by submitting necessary details in advance for link.
• One needs to provide email address for correspondence.
• All persons participating in VC shall be appropriately dressed and maintain decorum.

Based on the CBIC instructions, Commissionerates have issued guidelines for conduct of virtual hearing. The use of ‘whatsapp’ facility is also being allowed till any other more secure or easier mode is established.

The final thought

The concept a virtual personal hearing is a novel concept which will ensure continuity of the adjudicating and appellate matters in uncertain Covid -2019 hit times and also help in reducing the backlog. Like ‘work from home’, if this gives positive results, it may become a new normal. It is said, necessity is this mother of invention, so is this new idea of holding virtual hearings. If this concept if successful, we may find it largely acceptable which will not only save costs and time but also enhance efficiency of litigation disposal, tax compliances and recovery of taxes.