The Delhi High Court on Wednesday said that an urgent meeting of the Goods and Services Tax Council (GST Council) should be convened to consider the issue of classifying air-purifiers as 'medical device' and slashing the GST levied on them from 18 to 5 percent [Kapil Madan vs Union of India & Ors].

A Division Bench of Chief Justice Devendra Kumar Upadhyaya and Justice Tushar Rao Gedela noted that a report submitted by Parliamentary Standing Committee in December recommended that the government should take a sympathetic view and either abolish or lower the GST on air purifiers or HEPA filters used in air purifiers.

The Court said that the GST Council should meet at the earliest and consider the issue in view of the poor air quality in and around Delhi.

"We direct that the said issue of lowering or removing the GST shall be considered by the GST council at the earliest. We are informed that GST council is a pan-India body and convening a meeting may take some time. However, considering the air quality situation in Delhi and nearby areas, we find it appropriate for the GST council to meet at the earliest," the order said.

The Court directed government counsel Akash Panwar to seek instruction on how early the GST Council can meet.

"List this case on December 26, allowing the counsel for R2 to seek instruction about how early the council can meet. We may also observe that if the meeting of the council is not possible physically, the same may be considered to be done through video conferencing," the Bench ordered.

The Court was hearing a plea seeking directions to categorise air-purifiers as 'medical device' and slash the GST on them from 18 to 5 percent

As per the petition filed by advocate Kapil Madan, air-purifiers cannot be treated as luxury considering the “extreme emergency crisis” caused by dire air pollution in Delhi. 

“The imposition of GST at the highest slab upon air-purifiers a device that has become indispensable for securing minimally safe indoor air renders such equipment financially inaccessible to large segments of the population and thereby inflicts an arbitrary, unreasonable, and constitutionally impermissible burden,” the petition stated.

According to the petition, air-purifier satisfies the criteria of a 'medical device' under a 2020 notification issued by the Centre. 

“Air-purifiers perform a critical medical-device function by enabling safe respiration and mitigating life-threatening exposures, placing them squarely within the preventive and physiological-support purposes,” the petition said.

Thus, levying 18 percent GST on the same is arbitrary, unreasonable and disproportionate, it was .

According to the petition,

“Continued imposition of 18% GST on air-purifiers, despite their medically recognised role in crisis situations and their functional equivalence to devices taxed at 5%, constitutes an arbitrary and unreasonable fiscal classification. Such differential treatment fails the constitutional test of intelligible differentia and bears no rational nexus to public-health objectives, thereby warranting judicial intervention.”

When the matter was heard in the forenoon session, the Court had remarked that if the authorities cannot provide clean air for citizens to breathe, then the least it can do is to reduce the Goods and Services Tax (GST) on air purifiers which are currently taxed at 18 percent.

The Bench asked the government counsel to take instructions on the same and report back to the Court at 2.30 pm today.

"This is the minimum that you can do. Every citizen requires fresh air. If you can't do it, minimum you can do is reduce GST. Give an exemption for 15 days on a temporary basis. Treat this situation as an emergency. Take instructions and tell us now. Tell us now when will you come back with instruction. We will place it during vacation but only for compliance. How many times do you breath in a day? 21,000 times. Just calculate the harm you are doing to yourself. We want instructions at 2:30. We will keep it for compliance during vacations," the Court remarked.

When the matter was taken up at 2.30 in the afternoon, the counsel for the Central government said that the decision on tax rate is taken by the GST Council which has members from all States.

"This is a policy decision which is to be taken by the GST council. It comprises members from all the states. For me to give any concrete instructions would amount to my contacting each and every state official," the counsel said.

"They are not telling you when such a meeting will be held?" the Court asked.

"The meeting has to be called by the Finance Minister," the lawyer replied.

Senior Advocate Arvind Nayar, appearing for the petitioner, said that the government can easily reduce the GST by including air purifiers under a February 2020 notification.

The Court said that for that to be done, directions should be issued to the Ministry of Health and Family Welfare.

"We would then have to direct the Ministry of Health and Family Welfare to issue such a notification and based on that the GST council will consider it. What we propose to do is, we will record your concern and we will ask the nodal officer to place this before the GST council and they will come forth seeking instructions from the council by Monday or day after tomorrow," the Court remarked.

The petition was filed through advocates Gurmukh Singh Arora and Rahul Matharu.

Advocate Akash Panwar appeared for the Central Board of Indirect Taxes.