IGST on personal O2 concentrators unconstitutional, says Delhi high court

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The Delhi high court on Friday said the imposition of 12% Integrated Goods and Service Tax (IGST) on oxygen concentrators for personal use or those received as gifts is “unconstitutional”.

A bench of justices Rajiv Shakdher and Talwant Singh said this is a George Floyd moment for the citizens of the country in a different setting where several of them were gasping for breath due to the shortage of medical oxygen.

“The refrain is I can’t breathe, albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and driven by the merciless novel coronavirus, the citizenry has been driven to desperation and despair,” the bench said.

Quashing the May 1 notification by the Union finance ministry imposing 12% IGST on concentrators imported for personal use, irrespective of whether they are a gift or otherwise, the court said that the “virus has brought out the best and worst in people”.

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“….We have messiahs. We have charlatans. We have hoarders. We have seen a kind and caring hand being struck out by strangers when they could have remained cocooned in the safety of their houses. Bravehearts, there are many; doctors, nurses, and personnel manning public institutions….,” the court noted in its 33-page order.

The judgment came on a plea filed by advocate Siddharth Bambha for an 85-year-old Covid-19 patient who challenged 12% IGST being levied on oxygen concentrators after his nephew sent him the equipment as a gift from the US.

To check the misuse of the oxygen concentrators being put to commercial purpose, the court said individuals importing concentrators for personal use or as gift, will have to furnish a letter of undertaking to the officer designated by the Centre that the device was not for commercial use.

“Till such time an officer is designated by the State, it would be in order, if the importer were to address the undertaking to the joint secretary, customs and/or his/her nominee and handover the same to the officer detailed at the customs barrier,” the court said.

Pursuant to the filing of the petition, the finance ministry issued a notification on May 3 exempting IGST on oxygen concentrators coming as donation or gifts for the state government or if procured through a canalizing agency. However, individuals were not included in the list for exemption.

Senior advocate Sudhir Nandrajog along with advocate Bambha for the petitioners argued that such distinction was violative of the Constitution.

The court agreed and said that such distinction is “arbitrary”, “unreasonable” and in violation of Article 14 of the Constitution.

The Centre, in its affidavit, argued that any person importing concentrator for personal use or has sources for receiving such supplies in gifts will be in a better position to afford the nominal 12% IGST as compared to others who source it through commercial channels.

The Centre said imposition of tax or deciding rates does not come under judicial review. It said that if the argument of the petitioner is accepted, then it will lead to absurd consequences and interpretations, wherein citizens will be seeking exemption from property tax, since housing is an essential facet of the right to life under Article 21 of the Constitution.

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