We are all
aware that the entire world is reeling under severe pandemic, COVID 2019 or
Corona virus and India too has been badly affected causing social disruption,
economic shut down and health concerns. The economy is at a virtual standstill
and entire nation is under lockdown since 25th March, 2020 resulting in
shutdown of all offices, shops, showrooms, factories and everything. All
individuals are confined to their homes. This has resulted in inability to
fulfill statutory obligations in relation to payment of taxes and filings,
besides other corporate and other responsibilities.
In the given
situation, CESTAT, like any other tribunal or court is not functioning since 16
March, 2020, i.e., though the date from which lock down had been notified in
India is 25th March, 2020. As of now, lockdown shall be in force
till 17th May, 2020 and is likely to be extended, at least in
majority of towns where Cestat has benches. Headquartered at New Delhi,
Tribunal has its regional benches at Mumbai, Kolkata, Chennai, Bangalore,
Ahmedabad, Allahabad, Chandigarh and Hyderabad.
Owing to loss
of working days at Tribunal, a substantially large number of appeals could, not
be heard causing day in disposal of appeals. With GST in force w.e.f. 7th
July, 2017. The Cestat is engaged in disposal of appeals pertaining to old
indirect tax regime, mainly covering central excise and service tax matters. Of
course, there are other matters too in relation to Customs, Anti-dumping etc.
There has been
tremendous loss to all stakeholders during the current lockdown in terms of
business in revenue. Cestat has therefore, taken a stand that there will be no
summer vacation in 2020 in view of days lost in lockdown.
Cestat
functioning is governed by section 129 C of the Customs Act, 1962 read with the
Customs, Excise and Service Tax (Appellate Tribunal Procedure) Rules, 1982.
Amendments
in Rules
In order to
provide for ease in functioning of Tribunal and address Covid 2019 like
situations leading to shut down of activities, Cestat has issued Notification
No. 1/2020 dated 11.05.2020 providing for certain important amendments in
Procedures Rules with immediate effect and allows for -
1)
Filing
of appeals in soft version (Pen drive)
2)
Seeking
mobile phone number and email id of appellant and respondent
3)
Appeals
and cross objections to be filed alongwith soft copy in pen drives
4)
Paper
book shall also be stored / filed alongwith pen drives
5)
Allowing
for hearing of appeals through appropriate video conferencing platform
6)
Soft copy of stay application and impugned orders shall also
be filed ion pen drives alongwith the application.
Procedure
for Cestat Appeals - Amendments at a
Glance
·
Mobile contract and email id of appellant / respondent to be
mentioned (not of authorized representative) [Rule 8(1)]
·
Appeal / cross objection / application to be verified to the
effect that soft copy is a true copy of
the original [Rule 8(4)]
·
Appeal /cross objection accompanying documents to be stored
in two pen drives and filed [Rule 9(5)]
·
Soft copy of paper book to be stored in two pen drives and
filed along with paper book [Rule 16(8)]
·
Hearing
to be allowed to take place via video conferencing platform [Rule 19(3)].
·
Stay application, relevant orders and documents also to be
stored in two pen drives and filed with application [Rule 28A(5)].
The various amendments in terms of said
Notification are discussed hereunder :
Memorandum
of appeal [Rule 8]
Rule 8 deals
with contents of memorandum of appeal. Accordingly, every Memorandum of Appeal
shall set forth concisely and under distinct heads, the grounds of appeals and such grounds shall be numbered
consecutively and shall be typed in double space of the paper. Every memorandum
of appeal, cross-objections, reference applications, stay applications or any
other miscellaneous applications shall also be typed neatly in double spacing
on the A4 size paper and the same
shall be duly paged, indexed and tagged
firmly with each paper book put in a separate folder.
Amended
provision of sub rule(1) provides that "every Memorandum of Appeal or
Cross Objection shall set forth concisely and under distinct heads, the
Statement of Facts and Grounds of Appeal or Grounds of Cross Objection, as the
case may be, consecutively numbered and typed in double space of the paper.
They shall also contain a valid mobile number and e-mail address of both the
Appellant(s) and the Respondent(s).
Thus, appeal and cross objection shall
henceforth also contain :
a)
Void
mobile number of appellant and respondent
b)
E-mail
address of appellant and respondent
New
sub-rule (4) in Rule 8
New Rule 8 (4)
now provides that the verification of every Memorandum of Appeal or Cross
Objection or Miscellaneous Application filed on or alter the date of
publication of this Notification shall stale dial the soil copy of the Appeal
Memorandum or the Cross Objection or the Miscellaneous Application and the
Documents filed therewith are the true copies of the original.
Thus,
verification part of appeal / cross objection / application shall also verify
that the soft copies thereof alongwith documents filed are true copies of
original documents. It may be noted that physical filing has not been done away
with but additionally, two pen drives are also to be submitted with paper
filings.
What to a accompany memorandum of
appeal [Rule 9]
Rule 9 deals with what all should accompany
the memorandum of appeal.
It provides
that every Memorandum of appeal required to heard by a two-Member Bench shall
be filed in quadruplicate and shall be accompanied by four copies, one of which
shall be a certified copy of the order appealed against in the case of an
appeal against the original order passed by the additional Commissioner or
Commissioner of Excise or Customs and where such an order has been passed it
appeal or revision, four copies (one of which shall be a certified copy) of the
order passed in appeal or in revision and four copies of the order of the
original authority.
In the case of
an appeal which can be heard by a single Member, Memorandum of appeal shall be
filed in triplicate and number of copies of the order shall be three instead of
four.
The amendment
in Rule 9 is by way of insertion of new sub rule (5) which provides that every
Memorandum of Appeal or Cross Objection and the documents filed along with such
Appeal or Cross Objection shall be accompanied by its soft copy stored in two
pen drives.
The amendment
seeks to provide that henceforth all appeals / cross objections / documents
filed shall also be filed in soft copy which is stored in two pen drives. It
may be noted that physical filing has not been done away with but additionally,
two pen drives are also to be submitted with paper filings.
Preparation
of Paper Book (Rule 16)
Rule 16 deals
with how to prepare and submit a paper book in relation to an appeal.
Accordingly, the appellant shall, along with the appeal or within one month of
filing of the appeal, submit in such number of copies as of the memorandum of
appeal, as per book containing copies of the documents, statements of witnesses
and other papers on the file of, or referred to in the orders of, the
departmental authorities, which he proposes to rely upon at the hearing of the
appeal. The respondent may also file a paper book containing such documents,
which he proposes to rely upon at the time of hearing of the appeal, in such
number of copies as of the memorandum of appeal, within one month of the
service of the notice of the filing of
the appeal on him, or within two weeks of the service of the notice of the
filing of the appeal on him, or within two weeks of the service of the paper
book, whichever is later. All paper books shall contain clearly legible documents duly paged, indexed and
be tagged firmly.
The new
amendment is by way of insertion of new sub-rule (8) which provides that the
soft copies of the Paper Book shall also be stored in two pen drives and filed
along with such Paper Book.
Thus, apart
from physical filing of paper book, henceforth paper book being filed shall
also be stored in two pen drives and filed along with such paper book. It may be noted that physical filing has
not been done away with but additionally, two pen drives are also to be
submitted with paper filings.
Hearing of Appeal [Rule 19]
Rule 19 deals
with hearing of appeals before Tribunal. Accordingly, on the day fixed, or on
any other day to which the hearing may be adjourned, the appellant shall be
heard in support of the appeal. The Tribunal shall then, if necessary, hear the
respondent against the appeal and in such a case the appellant shall be
entitled to reply.
A new sub-rule
(3) has been, inserted in Rule 19 to provide that notwithstanding anything
contained in Sub Rule (1) of this Rule, the President may, by a separate
Notification, allow the hearing of Appeal or Cross Objection through
appropriate video conferencing platform in the manner as may be notified.
Thus, it has
now been provided that hence forth hearing of appeal /cross objection may be held by way of appropriate video
conferencing platform in a prescribed manner.
It may
be noted that this rule is a non obstante clause and shall over-ride sub rule (1) which
provides for personal hearing on the appointed day. In this regard, two notifications shall have to be issued for:
a)
Allowing
hearing of appeal or cross objections through video conferencing, and
b)
Manner
of hearing through appropriate video conferencing platform
Since the
notification amending rules comes into effect w.e.f. 11.05.2020 itself, it
appears that such provision may apply to existing appeals / cross objections
etc pending before the Tribunal.
Procedure
for filing and disposal of stay petitions [Rule 28A]
Rule 28A
provides for the procedure for filing and disposal of stay petitions. According
to existing sub-rule 5, every application for stay shall be accompanied by
three copies of the relevant orders of the authorities of the department
concerned, including the appellate orders, if any, against which the appeal is
filed to the Tribunal by the appellant and other documents, if any. It shall not be necessary for the
application to file copies of the documents which have already been filed with
the related appeal.
This sub-rule
(5) has now been substituted to provide that every application for stay shall
be accompanied by three copies of the relevant orders of the authorities of the
department concerned, including the appellate orders, if any, against which the
appeal is filed to the Tribunal by the Appellant and other documents, if any.
The soft copies of the stay
application,
the relevant orders and the documents, shall also be stored in two pen drives and
filed along with such application.
Thus, in
addition to what was required till now, the soft copy of stay application,
relevant orders and documents shall now also be required to be stored in two
pen drives and filed along with stay application.
The above
amendments are a welcome move, though belatedly but should now be looked as an
opportunity arising out of present Covid 2019 situation where social distancing
and other precautions ought to be the need of hour. However, the present
amendments do not reduce any burden of the appellant / respondent but casts
upon additional responsibility of
submitting pen drives (not by email or transfer of data under digital
signature). The threat of loss of pen drives and secured platform for video
conferencing as well as connectively will always be there.
It will be now
desirable to act upon these amendments and look forward to a scenario where
paper filing and physical hearing can be completely dispensed with. It is also
needed that some clarifications be issued by way of Frequently Asked Questions
(FAQ’s) before implementation.
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