Supreme Court stays Delhi HC's order holding IGST on imported oxygen concentrators as 'unconstitutional'

New Delhi: The Supreme Court Tuesday stayed a Delhi High Court order holding as "unconstitutional the imposition of Integrated Goods and Services Tax (IGST) by the Centre on import of oxygen concentrators by individuals for personal use.

A special bench of Justices DY Chandrachud and MR Shah issued notice on the plea and sought response from the petitioner, who filed a PIL before the high court.

We are staying the operation of the Delhi High Court order till further orders, the bench said.

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The top court was hearing an appeal field by Ministry of Finance (Department of Revenue) against the 21 May, high court order.

Attorney General KK Venugopal said the GST council will meet on 8 June and deliberate on granting exemption to essential items related to COVID-19 , including oxygen concentrators.

Venugopal said that the high court did not consider that IGST exemption had been already granted to the states and other government agencies on the import of oxygen concentrators. According to the high court, Article 21 is violated if you impose tax on them, he said.

"Earlier the IGST was 77 percent. We brought it down to 28 percent and it was further brought down to 12 percent but they still say that Article 21 is violated," Venugopal said.

On 28 May, it was decided that a group of ministers will submit its report on 8 June, on any tax exemption to be provided on import of essential commodities related to COVID, he added.

The top law officer submitted that the high court order trenches upon the issue of policy and ties the hand of GST council even before any decision is taken.

The bench noted the submission of the Attorney General and posted the matter for further hearing after four weeks.

On 21 May, the Delhi High Court had quashed the 1 May notification issued by the Ministry of Finance which says that such oxygen concentrators imported for personal use, irrespective of whether they are a gift or otherwise, will be charged with an IGST of 12 percent.

The high court had said that the individuals will have to give an undertaking to the authorities that the oxygen concentrator is being imported for personal use and not commercial use.

The High Court had given its verdict on a plea challenging imposition of IGST on the import of oxygen concentrators as gift for personal use.

It had earlier directed that the oxygen concentrator being imported by the 85-year-old petitioner be released by the custom authorities, subject to his depositing with the court an amount equivalent to the IGST payable.

The court had on 21 May ordered that the money be released to the man, who was suffering from COVID-19 with accrued interest.

The man had claimed that his nephew had sent an oxygen concentrator for him as a gift from the US to ameliorate his condition.

The petitioner had challenged imposition of IGST on import of oxygen concentrators for personal use, as the essential equipment is already in shortage in the country during the COVID-19 pandemic.

His plea had said that the May 1 notification was violative of Articles 14 and 21 of the Constitution, since the same is arbitrary and infringes the right to life of patients reeling under the COVID-19 pandemic.

It said the notification unconstitutionally mandates that the petitioner and other similarly placed Indian citizens to pay IGST on something as crucial as oxygen concentrator which is been gifted to them specifically for their personal use under the present circumstances wherein there is a nationwide crisis owing to the unavailability of oxygen concentrators and similar medical equipment.

The high court had earlier said this petition represents one of those rare writ actions, whereby, a notification issued in the realm of a tax statute has been assailed under Article 21 of the Constitution.

"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," it had said.