"One May Pay For Concentrator & Ask Relative To Send, Foreign Exchange Is Weak": AG Tells SC On IGST Exemption On Oxygen Concentrators Imported As Gifts

"The exemption to the imports by the State or its agency is given for the purpose that the concentrators so bought are meant to be distributed for free among the needy and poor. This purpose is not considered by the HC...If you say that even oxygen concentrators, imported for personal use, as gifts, are exempted, then there will be 10,000 of these coming in! And there is no way of verifying which is a gift and which is not! One may pay for them using his credit card and ask his relative to pick it up and send it to him...Foreign exchange is weak...", the AG submitted.

"You remember there was a petition for exemption of GST on wheelchairs? Where you did not want an intervention by the court...", Justice Chandrachud said to the AG

[The Supreme Court had last year heard a writ petition challenging the imposition of GST on assistive devices for persons with disabilities. The petitioner submitted that a normal person needs not to pay tax for walking; however, a disabled person needs to pay a 5% tax for walking. The Attorney General said that while he understood the petitioners' difficulties at a humanitarian level, mere tax imposition cannot be held to be infringing the fundamental rights to warrant judicial interference. A three-judge bench comprising Justices Chandrachud, Indu Malhotra, and Indira Banerjee granted the petitioner liberty to move a representation with the GST council for zero GST on mobility aids, such as wheelchairs, scooters, walkers, canes, crutches, prosthetic devices, and orthotic devices. The writ petition was posted after three months to await the decision of the GST council]

"Yes. Your Lordships had referred the issue to the GST Council. The GST Council is set to consider the issues on June 8. But because of the judgment, the Council now cannot independently decide...In fact, there is a Group of Ministers looking at further relief on individual items. Concentrators are also there. The GoM is to give its report on June 8...", the AG told the bench on Tuesday.

"This is a policy decision. The purpose for exemption to the government and its agency is for distribution to the needy and poor. Either you did not argue this before the HC or the HC has not considered this at all", observed Justice Shah.

Justice Shah observed that it was debatable whether Article 14 of the Constitution is applicable to an issue of taxation policy.

Taking note of the AG's submissions, the bench passed the stay order, while issuing notice returnable within 4 weeks.

"The Attorney General submits that on May 21 meeting of the GST council, it was decided that a Group of Ministers would be constituted to scrutinize the need for further exemption on COVID relief. They will submit a report on 8th June. It is submitted that the High Court order trenches upon a matter of pure policy. It is submitted that exemption which has been granted for oxygen concentrators is for a distinct classification. Arguable questions are raised", the bench observed in the order.

In the impugned judgment, the HC had held that the Courts and the State must adopt a humanistic approach, right to health being a facet of Article 21. In view of this, the Court also went ahead to observe that there is a positive obligation on the State to take ameliorative measures so that adequate resources are available to protect and preserve the health of persons residing within its jurisdiction.

The HC had also held that "a declaratory relief can be accorded, to the effect, that imposition of IGST on oxygen concentrators, imported as gifts, i.e., free of cost, for personal use, is violative of Article 14 of the Constitution on the ground that an artificial, unfair and unreasonable distinction has been drawn between persons, who are similarly circumstanced as the petitioner and those who import oxygen concentrators through a canalizing agency."