Imposition of IGST on Import of Oxygen Concentrators as Gift for Personal use Unconstitutional: Delhi High Court

The petitioner before Court was an 85-year-old COVID-19 patient whose nephew sent an oxygen generator as gift from the United States of America.

The Delhi High Court on Friday held that the imposition of Integrated Goods and Services Tax (IGST) on the import of oxygen concentrators as gift for personal use is unconstitutional (Gurcharan Singh vs UOI).

The High Court has accordingly quashed the May 1 Notification levying 12% IGST on Oxygen Generators imported as gifts for personal use.

As per the Court's direction, such importers would now have to furnish a letter of undertaking to the authority concerned, stating that the oxygen concentrator is for personal use and not for commercial usage.

The judgement was pronounced by a Division Bench of Justices Rajiv Shakdher and Talwant Singh

The petitioner before Court was an 85-year-old COVID-19 patient whose nephew sent an oxygen generator as gift from the United States of America.

The petitioner, through Senior Advocate Sudhir Nandrajog, had argued that the imposition of IGST by the Centre on the import of oxygen/oxygen generators as gift for personal use not only violated Article 14, but also abridged the right to have oxygen, which was part of the right to life under Article 21 of the Constitution of India.

It was also highlighted that certain imports had already been exempted from IGST levy till July 31.

Senior Advocate Arvind Datar, who was appointed as Amicus Curiae by the Court, had argued that singling out oxygen concentrators imported as gifts for personal use with respect to non-grant of IGST exemption was arbitrary and not correct.

Unless the government showed that there would be an enormous loss of revenue which is detrimental to the public interest, oxygen concentrators should also be included in list of exempted articles, he stated.

In response, counsel for the respondent authorities, Advocate Zoheb Hossain contended that there was no "omnibus direction" to exempt lifesaving medicines and drugs.

He argued that imposition of taxes could not be subject to judicial review, and that the IGST at the rate of 12% was imposed in the present case to maintain parity with a commercial user and to avoid black marketing and profiteering.

Pending a final decision in the petition, the Court had directed that the oxygen concentrator being imported by the petitioner be released by the custom authorities, subject to his depositing with the Court an amount equivalent to the IGST payable.