"Rare occasion when Article 21 is invoked in tax matter:" Delhi High Court on IGST levy on oxygen concentrator imports as gift for personal use

The Delhi High Court on Wednesday opined that there is no reason why the Central government should not grant exemption from imposition of Integrated Goods and Services Tax (IGST) on the import of oxygen generators/concentrators as gift for personal use (Gurcharan Singh v. UOI).

Noting that there was already an exemption given to a category of imports vide a notification published on May 3, a Division Bench of Justices Rajiv Shakdher and Talwant Singh stated in its order,

"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."

The Court observed that ordinarily, taxation did not entail any aspect of equity. However, given the present situation, a petitioner before it had invoked Article 21 of the Constitution of India to assail a levy.

"This is a rare occasion when Article 21 is invoked in tax. This is a difficult situation. Why should State not be sensitive to it," it remarked.

The Court requested that the order passed by it be placed before the Finance Minister, Government of India.

"It makes no sense. How much tax are you going to collect from individuals?" the Court demanded.

Additional Solicitor General Chetan Sharma assured the Court that he would take up the issue with the authorities and get back with instructions on May 6.

During the course of the hearing, ASG Sharma also informed the Court that seventeen pieces of COVID-19 equipment have already been exempted from levy.

He added that IGST leviable on import of Oxygen Generators is 12 per cent till June 30, 2021, and prior to the May 1 Notification, it was 28% for personal use.

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

The petitioner contended that imposition of any sort of levy by the State on the import of oxygen/oxygen generators for personal use abridges the right to have oxygen which is part of the right to life under Article 21 of the Constitution of India.

It was further argued that it is "patently arbitrary" that IGST on the import of oxygen generators is levied at the same rate for both personal use as well as commercial use.

Senior Advocate Sudhir Nandrajog with Advocates Siddharth Bambha, Shyam D Nandan and Chirag Ahluwalia appeared for the petitioner.

Advocate Zoheb Hussain appeared with ASG Sharma for the Centre.

[Read Order]