Sunday, December 10, 2023

Appeal against IGST on oxygen concentrator gifts from abroad for personal use: Delhi HC reserves order

The plea who opposed the 12% tax on an oxygen concentrator sent as a gift from his nephew in the US.

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The Delhi High Court on Tuesday reserved its judgement on a challenge to  Integrated Goods & Services Tax (IGST) on the import of oxygen concentrators as gift for personal use.

The matter relates to a plea filed by an 85-year-old person Gurcharan Singh, who opposed the 12% tax on an oxygen concentrator sent as a gift from his nephew in the US.

Senior Advocate Sudhir Nandrajog, on behalf of the petitioner, 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.

Senior Advocate Arvind Datar, appointed as Amicus Curiae, 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. The object behind exempting customs duty on oxygen concentrators was ultimately to combat the acute shortage, he added.

Datar referred to the case of Navtej Singh Johar, in which the apex court had ruled that the courts could play a role in imposing positive obligations, and not just negative obligations, in the form of mandamus.

On Tuesday the Union Government filed its reply in the court in a 211-page affidavit signed by Pradeep Kumar, assistant commissioner, legal cell, air cargo complex export, New Delhi.

According to the affidavit, people who import oxygen concentrators for personal use or as gifts would be in a position to afford paying 12% Integrated Goods and Service Tax (IGST).

The centre has said that the parity between commercial and personal imports would ensure that the personal import route remains legitimate. “With a 12% IGST rate on imports of concentrators, a parity at a lower GST rate has been attained between gift, personal imports and commercial imports of oxygen concentrators. This ensures that the common man buying it through a commercial route, from a trader, or a person who could personally import, either on paying from pocket or receiving as gift, all bear the same incidence of IGST at a lower rate of 12%.”

Standing Counsel Zoheb Hussain contended that there was no omnibus direction to exempt life saving medicines and drugs. He further argued that imposition of taxes could not be subject to judicial review.

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The Centre also said that someone may also seek exemption from taxes imposed on several food items since right to food has been held by the Supreme Court to be a part of Right of Life under Article 21.

After hearing the parties, the division bench comprising of Justice Rajiv Shakdher and Justice Talwant Singh reserved its judgement.

Source: ILNS

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