IGST on concentrators imported as gifts unconstitutional: HC

New Delhi: The Delhi High Court on Friday ruled that the imposition of 12 per cent IGST on oxygen concentrators imported as personal gifts was unconstitutional, noting in the prologue of its judgement that this was a "George Floyd moment" for the country as the main refrain of the people now is "I can't breathe", although in a different context.

"This is a George Floyd moment for the citizens of this country. The refrain is — I can't breathe — albeit, in a somewhat different context and setting; although in circumstances, some would say, vastly more horrifying and ghastlier. Chased and driven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair," the court started its judgement. A division bench of Justices Rajiv Shakdher and Talwant Singh passed the order on a plea moved by an 85-year-old man, one Gurcharan Singh, who challenged the levy of the said tax on the import of oxygen concentrator.

The petition particularly challenged the notification issued by the Central government which stated that it would force payment of IGST of 12% on the oxygen concentrator.

In its order, the bench stated that it has held that imposition of IGST on the oxygen concentrators imported by individuals and are received by them as gifts, for personal use is unconstitutional. Given this declaration, the notification on 30/2021 dated 1/5/2021 is quashed".

While quashing the notification in favour of the petitioner, the court said that in order to prevent misuse of oxygen concentrators by the petitioner and/or persons similarly circumstanced, "she/he/they would have to furnish a letter of undertaking to the officer designated by the State that the same would not be put to commercial use".

The court further directed the Registry to release money deposited with it along with any interest if accrued, at the earliest.

The petitioner in the case argued that imposition of any levy by the state on oxygen concentrators for personal use "abridges the said invaluable right and such imposition deserves to be struck down as being violative of Art. 21". In its order, the court noted that tax exaction laws must bend to the will of equity and that too in times of famine, disaster, epidemics and pandemics. The court said, "This, in our view, would humanize the law and give it a societal perspective. Exaction by the State, in the form of tax, in good and normal times, is, ordinarily, sustained by the Courts as they defer to the legislative wisdom-that the imposition of the tax is for the greater good of the public; unless proved to the contrary. However, in times of peril, the Courts must examine the stand taken by the State to defend an action instituted to lay challenge to a tax-on anvil of Article 21 of the Constitution; as it is not the form but the impact of the tax which will determine its tenability. The Courts and the State have to adopt a humanistic approach, which, in our view, is a facet of Article 21 of the Constitution. The failure to do so both, by the Court and by the State, would lead to an unbridgeable chasm between law and justice, resulting in, disruption of social order."

The court also observed, "We have messiahs. We have charlatans. We have hoarders. We have seen kind and caring hand being struck out by strangers when they could have remained cocooned in the safety of their houses. Brave hearts, there are many; doctors, nurses, and personnel manning public institutions. These are people who are at the forefront of this battle, staking their lives, so that the common man could live; beating this adversary, i.e., the virus is their only goal."