Can GST be imposed on oxygen concentrators which are imported by individuals albeit free of cost for personal use?

Can GST be imposed on oxygen concentrators which are imported by individuals albeit free of cost for personal use?

The Delhi High Court bench of Justice Rajiv Shankdher & Justice Talwant Singh has held that imposition of IGST on oxygen concentrators which are imported by individuals and are received by them as gifts [i.e. free of cost] for personal use, is unconstitutional.

FACTS OF THE CASE

The Petitioner has approached this Court against the imposition of IGST on the import of the oxygen concentrator which has been gifted to him by his nephew., He alluded to above, asserts that the imposition of tax is discriminatory, unfair, and unreasonable and that it impinges upon his right to life and health

Petitioner claim in most cases, where BCD is nil, exemption from imposition of IGST is also given. The imposition of IGST at the rate of 12% on oxygen concentrators imported for personal use even while the imposition of BCD on them is exempted, places such cases in the excepted category; which is, contrary to the prevailing practice

Furthermore, a perusal of entry no. 607A1 of General Exemption no. 190 would show that complete exemption from BCD and IGST is granted for life-saving drugs/medicines imported for personal use which are supplied free of cost by overseas supplier. The exemption, however, is subject to the condition i.e. obtaining a certificate from the named officials that, the goods in issue are life-saving drugs/medicines.

The Government of India amended paragraph 2.25 of its Foreign Trade Policy, 2015-2020 [in short “FTP”] to permit import of life-saving drugs/medicines, oxygen concentrators, and Rakhi received as gifts (but not gifts related to Rakhi), as indicated above, via notification no. 4/2015-2020, dated 30.04.2021, issued by DGFT, which, in turn, resulted in exemption from BCD [vide notification no. 28/2021-Customs dated 24.04.2021]; and therefore, the same principle should apply to IGST. Under the said notification, oxygen concentrator is allowed to be imported as a gift for personal use till 31.07.2021- keeping in mind this approach, there is no good reason for not exempting oxygen concentrators from the imposition of IGST at least till 31.07.2021.

Further imposition of IGST violates not only the right to health but also the right to human dignity which is interwoven in Article 21 of the Constitution

COURT HELD

Considering the facts as recorded, held that imposition of IGST on oxygen concentrators which are imported by individuals albeit free of cost for personal use, is unconstitutional.

Thus The writ petition is disposed of in the aforesaid terms.

To obviate misuse of the 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 petitioner would thus submit a letter of undertaking with seven days of the State intimating/notifying the particulars of the officer designated for this purpose.

ANALYSIS OF THE JUDGEMENT

That persons who are similarly circumstanced as the petitioner, i.e., those who obtain imported oxygen concentrators as gifts, for personal use, cannot also be equated with those who import oxygen concentrators for commercial use. Therefore, notification bearing no. 30/2021-Customs, dated 01.05.2021, will also have to be quashed.?

The fact that oxygen concentrators are, in present times, placed at par with life-saving drugs and medicines.

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