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June 2, 2021

IGST imposition on import of oxygen concentrators for personal use passed by Delhi HC stayed by Supreme Court

by Mahesh Mara in GST, Legal Court Judgement

IGST imposition on import of oxygen concentrators for personal use passed by Delhi HC stayed by Supreme Court

Fact and Issue of the case

On 21st May Delhi HC has passed an order which says that IGST imposition on import of oxygen concentrators for personal use is unconstitutional. The order was passed on the plea of Covid-19 patient, whose nephew had sent an oxygen generator as gift from the US. The petitioner counsel had argued that the imposition of IGST by the central government 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.

Observation of the court

A bench comprising Justices D.Y. Chandrachud and M.R. Shah said that they issued notice and till next date of hearing there shall be stay on operation of the May 21 order of the Delhi High Court. Attorney General K.K. Venugopal, who is representing the Ministry of Finance, mentioned that the government removed the slab from 28% and brought to 12%, but still it is been said that Article 21 is violated. The Attorney General argued that several hundreds of such equipment will be imported using the High Court order. The Attorney General submitted that the GST council is holding a meeting on June 8th and this matter will be taken up.

The top court noted that the 43rd GST Council meeting held on 28th May 2021, a decision was taken to constitute a council of ministers to provide further relief to Covid related items. The top court added the Centre has submitted that the High Court entered into an area of pure policy, by granting exemption to state and its agencies in the import of oxygen concentrators.

After a brief hearing in the matter, the top court issued notice on the plea filed by Ministry of Finance challenging the High Court order and stayed the High Court judgment till the next date of listing. The Delhi High Court had held the imposition of IGST on import of oxygen concentrators for personal use is “unconstitutional”. A division bench comprising Justices Rajiv Shakdher and Talwant Singh said the imposition of IGST on oxygen concentrators imported by individuals or received by them as gifts, for personal use is, unconstitutional.

The High Court quashed the May 1 notification levying 12% IGST on imported oxygen concentrators. The court noted that importers of oxygen concentrators would have to furnish a letter of undertaking to the concerned authority, declaring that device is for personal use, and not for commercial use. Supreme Court on 1st June 2021 stayed the operation of Delhi High Court order, which held that imposition of Integrated Goods and Services Tax (IGST) on the import of oxygen concentrators as gift for personal use is unconstitutional.

Conclusion

The Supreme court hence has stayed the order passed by the High court of Delhi

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