Centre to retain GST on oxygen concentrators

Delhi High Court pushes back, saying that the government should review its resistance at such a time

May 06, 2021 11:24 pm | Updated May 07, 2021 09:32 am IST - NEW DELHI

A volunteer prepares beds with oxygen concentrators and oxygen cylinders at a Covid Care Centre in New Delhi on April 20, 2021.

A volunteer prepares beds with oxygen concentrators and oxygen cylinders at a Covid Care Centre in New Delhi on April 20, 2021.

The Central government should review its resistance to exempting the Goods and Services Tax (GST) levied on oxygen concentrators imported for personal use, the Delhi High Court observed on Thursday after the Finance Ministry conveyed its inability to accept the Court’s order issued on Wednesday.

Late on Thursday, the Delhi High Court appointed senior Counsel Arvind Datar as amicus curiae to assist the court in a case where the Government has not complied with its May 5 order to exempt oxygen concentrator imports for personal use, from 12% GST. The petitioner in the case, a senior citizen whose nephew has shipped him a concentrator, had invoked Article 21 of the Constitution to question the tax on an item needed to ensure the right to life.

A High Court Bench of Justices Rajiv Shakdher and Talwant Singh also critiqued the Centre’s PR exercise amidst the pandemic, and mooted that it was time to be more humane, while mentioning that even President Joe Biden had dropped the U.S. administration’s resistance to intellectual property waivers for COVID-19 vaccines after “good sense prevailed”.

Exlained | How does an oxygen concentrator help?

The petitioner in the case, a senior citizen whose nephew had shipped him a concentrator as a gift, had challenged a May 1 notification that levied 12% GST on such imports from 28% earlier. He invoked Article 21 of the Constitution, which enshrines the fundamental right to life.

The government counsel said the Court’s order had been escalated to the highest levels, but the decision was that the maximum possible relief had already been given by reducing the GST rate. While the plea was only for GST exemption on gifts, the Court said the government should consider the exemption for all such imports till the pandemic subsides.

“Just one small single item is being reported on this, last few days. I won’t call it bad publicity, they are just narrating the facts as they are happening in the court. They will do more damage to your PR exercise… We are not saying that any PR exercise is required in COVID times… Let us be more humane, this is my request to you. It will win so many hearts for the government — people will feel comforted,” Justice Singh said.

Also read | Government permits import of oxygen concentrators bought through post, courier for personal use

“Everybody doesn’t have a relative abroad, no? Suppose a judge of this court wants to import, he doesn’t have a relative. But he has a friend who says I will arrange it for you, but you bear the cost. Should the State, in these circumstances, be imposing a tax? How much are you gaining out of this collection?” Justice Shakdher asked the government counsel.

“I don’t know why there is this resistance to this, which from every angle seems right? I can assure you that this will give us an opportunity to decide whether Article 21 is applicable and maybe it will set a new trend,” he said.

“We want to keep our hands off… Good sense may prevail on them, which is what we hope, against all odds,” Justice Singh noted, while Justice Shakdher observed that the U.S. administration had also acted in a similar way.

“Today, I read that President Biden has decided to waive [IP norms for COVID-19 vaccines] … they were equally resistant when we approached the WTO, with many countries… they didn’t want to waive it. And now, some good sense has prevailed, because they realise that if this continues here, it will affect the U.S. as well,” he pointed out.

Referring to the difficulties being faced by all in similar circumstances as the petitioner, the judges mentioned the suffering of a lawyer “colleague” and remarked that the bureaucracy “just doesn’t seem to be understanding this”, despite losing very senior officers.

Justice Singh also said he had been searching for concentrators himself and they were not available in many countries.

Questioning the government on how much revenue it hoped to raise from such GST levies, the Court noted its law officers’ fees may be more than the revenue generated.

“Whatever money the government is going to collect, most of its part would be spent on COVID relief. So instead of first collecting the money, then spending it on COVID relief, why can’t you allow this exemption? This is one way of fighting the COVID,” Justice Singh observed.

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