Govt. Can Extend IGST Exemption to Enable Individuals to Obtain Imported Oxygen Concentrators By Way Of A Gift: Observes Delhi High Court

The Delhi High Court on Wednesday sought Central Government's response in a 85 year old's plea challenging the levy of IGST on the import of oxygen generators as gift for personal use to India. The petitioner challenges a notification dated 01.05.2021 issued by the Ministry of Finance stating that it would force payment of IGST of 12% on the oxygen concentrator.

A division bench comprising of Justice Rajiv Shakdher and Justice Talwant Singh asked ASG Chetan Sharma appearing for the Centre to seek instructions on the aspect and ordered thus:

"We are of the view that since the respondent has gone this far, it could move further, and extend the exemption, to even individuals, to enable them to obtain imported oxygen concentrators by way of a gift, albeit, without having to pay IGST. Both the learned ASG and Mr. Zoheb Hossain have stated before us that they will revert with instructions. Accordingly, list the matter on 6th May 2021."

The petition was preferred after the nephew of the Petitioner sent an Oxygen Generator as a gift from USA, however, the impugned notification reduced the IGST leviable on import of Oxygen Generators @ 12% till 30.06.2021.

Prior to the said notification, the import of Oxygen Generators for personal use was levied IGST @ 28% while those importing for commercial purposes were levied @ 12%.

"It is respectful submission of the Petitioner that the right to have oxygen is a part of right to life as guaranteed under Article 21 of the Constitution. The imposition of any sort of levy by the state on the import of Oxygen /Oxygen generators for personal use abridges the said invaluable right and such imposition deserves to be struck down." The plea states.

The petition further states that it is "patently arbitrary" that the IGST is levied at the same rate on the import of Oxygen Generators for both personal use as well as commercial use and that such an import for personal use cannot be equated with the import of the same goods for commercial purpose.

"The action of the Respondent appears all the more arbitrary since the Director General of Foreign Trade ('DGFT') has already issued a notification on 30.04.2021 whereby the import of Oxygen Generators as gift for personal use has been exempted from import duty. It is submitted with utmost deference that one arm of the state is unappreciative of the great public interest involved in de-levying the import of Oxygen Generators, while the other arm is taking laudable steps in that direction." The petition reads.

Furthermore, the petition states thus:

"Oxygen generators imported by a person for his/her own use can only be considered as the import of oxygen for a person to breathe since the same is a scarce commodity in the country at present. The state levying a duty on the same is harsh and reckless."

During the course of hearing today, ASG Sharma informed the Court that another notification dated 3rd May 2021 issued by the Ministry of Finance has exempted imposition of IGST on oxygen concentrators imported by the State Government, or via any entity, relief agency or statutory body, authorised by the State Government. It was also informed that this exemption is available till 30.06.2021.

"That tax is an exaction by the State is well known. That its levy and collection, ordinarily, does not encompass equity, is also, well known. But, presently, we are living in difficult times and, therefore, perhaps, the petitioner has invoked Article 21 of the Constitution." The Court observed at the outset.

Senior Advocate Sudhir Nandrajog along with Advocates Siddharth Bambha, Shyam D Nandan and Mr. Chirag Ahluwalia appeared on behalf of petitioner.

The matter will now be heard on May 6.

Title: Gurcharan Singh v. Ministry of Finance

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