"Prima facie approach is wrong:" Delhi High Court reserves order in challenge to IGST on import of oxygen concentrators as gift for personal use

While reserving its judgement in the challenge to the imposition of Integrated Goods and Services Tax (IGST) on the import of oxygen concentrators as gift for personal use, the Delhi High Court on Tuesday prima facie opined that the approach of the government is wrong (Gurcharan Singh vs UOI). .Even as the counsel for the Central government argued that issue of levying IGST on the import of oxygen concentrators as gift for personal use should be left to the GST Council as it was a "complex economic issue", a Division Bench of Justices Rajiv Shakdher and Talwant Singh responded,"This is becoming too cliched. We also understand...If you channelise through agency, you get it. If we do it on our own, you say no. I don't see the rationale.".The Court further remarked, "You've done good things. One such blip will whitewash everything...".The petitioner before Court was an 85-year-old COVID-19 patient whose nephew sent an oxygen generator as gift from the United States of America..The petitioner, through Senior Advocate Sudhir Nandrajog, had argued that the imposition of any sort of levy by the Centre on the import of oxygen/oxygen generators as gift for personal use not only violated Article 14, but also abridged the right to have oxygen, which was part of the right to life under Article 21 of the Constitution of India..It was also highlighted that certain imports had already been exempted from IGST levy till July 31. .Senior Advocate Arvind Datar, who was appointed as Amicus Curiae by the Court, argued that singling out oxygen concentrators imported as gifts for personal use with respect to non-grant of IGST exemption was arbitrary and not correct. .Datar emphasised that the life-saving drugs and medicines had been recognised by the government as being eligible for grant of the exemption and therefore, unless the government showed that there would be an enormous loss of revenue which is detrimental to the public interest, oxygen concentrators should also be included in list of exempted articles. .He added that the object behind exempting customs duty on oxygen concentrators was ultimately to combat the "acute shortage". He added that if imports were facilitated, it would ultimately lessen the burden on State resources. .The Court also queried if it could "climb the plank of Article 21 to issue a mandamus" in the present instance..Datar submitted that in the Navtej Singh Johar case, the Supreme Court had ruled that the courts could play a role in imposing positive obligations, and not just negative obligations, in the form of mandamus. "This case is sui generis. One of a kind. Need for oxygen concentrators is for a limited time...It's a unique case and the Court need not lay down principles for all times to come," Datar expressed. .Delhi High Court appoints Arvind Datar as Amicus Curiae in challenge to IGST on import of oxygen concentrators as gift for personal use.In response to the submissions, Standing Counsel Zoheb Hussain contended that there was no "omnibus direction" to exempt life saving medicines and drugs. ."To say that the trend is to exempt is factually incorrect...ad hoc exemption is given in terms of GST Council recommendations," he said. .Referring to the principle of separation of powers, Hussain argued that imposition of taxes could not be subject to judicial review. .He explained that IGST at the rate of 12% was imposed in the present case to maintain parity with a commercial user, and to avoid black marketing and profiteering. .After hearing the parties, the Court reserved its judgement.