[IGST on oxygen concentrator] "I can’t breathe, George Floyd moment for citizens:" Delhi High Court on oxygen shortage

This is a George Floyd moment for the citizens of this country, said the Delhi High Court on Friday as it quashed a Central government notification levying 12 percent Integrated Goods and Service Tax (IGST) on Oxygen Generators imported as gifts for personal use amid the COVID-19 pandemic (Gurcharan Singh v. Union of India). .A Division Bench of Justices Rajiv Shakdher and Talwant Singh opened its 33-page judgement saying, "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 riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.".The Court took judicial notice of the fact that liquid medical oxygen was in short supply not only in Delhi but in all parts of the country which resulted in people scrambling for oxygen cylinders and oxygen concentrators..The judgement was passed on a plea by an 85-year-old COVID-19 patient whose nephew had sent an oxygen generator as gift from the United States of America..The petitioner had argued that the imposition of IGST 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, a facet of the right to life under Article 21 of the Constitution of India..[BREAKING] Imposition of IGST on import of oxygen concentrators as gift for personal use unconstitutional: Delhi High Court.Noticing the steps taken by the Central government to combat the pressure, including wholly exempting the imposition of basic customs duty on oxygen concentrators and IGST on import of oxygen concentrators routed through a canalising agency, the Court held that the exclusion of individuals from the benefits of the exemption because they chose to receive the oxygen concentrators as a gift, was violative of Article 14 of the Constitution..The Court opined that it was not permissible for the State to exclude a set of persons who would ordinarily fall within the exempted class by creating an artificial, unreasonable, and substantially unsustainable distinction..Further, in its judgement, the Court acknowledged that tax was an exaction that did not, ordinarily, recognize equity. .It must, however, "bend to the will of equity", the Court added. ."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.. 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 said. .In the present case, the Court noted that no instance of "greater good of public" had been set up by the State. ."We were told that GST collection has remained at a figure in excess of Rs. 1 lakh crores since October 2020, and in April 2021 alone, Rs. 1.41 lakh crores was collected on this account. We can take judicial notice of the fact that in the budget of 2021, the State has allocated nearly Rs. 74602 crores21 towards health initiatives," the Court recorded. .The Court thus asserted that the State should relent, or at least lessen the burden of exactions, in times of war, famine, floods, epidemics and pandemics since such an approach would allow a person to live a life of dignity, a facet of Article 21 of the Constitution..To arrive at its decision, the Court also considered that oxygen concentrators are, in present times, placed at par with life-saving drugs and medicines. .The Court also noted that the scarcity of liquid medical oxygen, medicines, oxygen concentrators, hospital beds, ventilators, and other medical equipment brought out the best and worst in people.."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.".Senior Advocate Arvind Datar was the Amicus Curiae and he appeared along with Advocate Rahul Unnikrishnan..Senior Advocate Sudhir Nandrajog with Advocates Siddharth Bambha, Shyam D Nandan, Chirag Ahluwalia appeared for the petitioner. Senior Standing Counsel Zoheb Hossain appeared for the State..[Read Judgement]