SC stays Delhi HC’s quashing of IGST on import of oxygen concentrators for personal use

The Supreme Court on Tuesday stayed the Delhi High Court order that quashed the Union government’s decision to impose 12% Integrated Goods and Service Tax (IGST) on import of oxygen concentrators for personal use, as “unconstitutional”.

A bench led by Justice D Y Chandrachud sought response from the PIL petitioner on an appeal by the Finance Ministry against the HC’s May 21 decision.

It also said that the HC judgment infringes on a pure issue of policy. “Exemption granted for imported concentrators imported by the state or state agency is a different category. Can’t class individual imports in the same way,” the Bench said.

The HC had quashed the May 1 notification issued by the Ministry of Finance which stated that oxygen concentrators imported for personal use, irrespective of whether they are a gift or otherwise, will be charged with an IGST of 12%. The HC held that oxygen concentrators should be treated on par with life-saving drugs.

Attorney General K K Venugopal told the SC that even as the IGST was brought down to 12% from 77%, the HC felt that the imposition of IGST violated Right to Life.

Representing the Centre, the top law officer argued that the IGST exemption was granted to state and its agencies for import of oxygen concentrators as these were to be given free to the poor and needy while individuals cannot be given such relaxation.

Stating that the HC should have stayed away from any policy decision like imposition of taxes, the AG said that a decision was taken on May 28 at 43rd GST Council meeting to constitute a Council of Ministers for exempting Covid-19-related items. He said the High Court entered into an area of policy as the exemption was based on distinct classification.

The government said that IGST was imposed to maintain parity with a commercial user and to avoid black marketing and profiteering.

The HC order came on a PIL by 85-year-old Covid-19 patient, whose nephew had sent an oxygen generator as a gift to him from the US. He argued that the imposition of IGST by the Finance Ministry on devices meant for personal use violated the Article 14 and also abridged the right to have oxygen, which was part of the Right to Life under Article 21 of the Constitution.