This story is from May 21, 2021

Delhi HC quashes tax on gifted oxygen concentrators

Delhi HC quashes tax on gifted oxygen concentrators
NEW DELHI: Terming it a "George Floyd moment" for India where citizens say "I can’t breathe" due to scarcity of medical oxygen, the Delhi high court Friday quashed a 12% tax on oxygen concentrators gifted from abroad for personal use.
"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.
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Chased and driven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair," a bench of justices Rajiv Shakdher and Talwant Singh observed.
It held that imposition of IGST on oxygen concentrators imported by individuals as gifts [i.e. free of cost] for personal use, is unconstitutional.
The court observed that scarcity of liquid medical oxygen [in short LMO], 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. There is, thus, in this litigation, no adversary other than the virus," it noted, invoking the
Right to Life in a tax matter - a rare case.
Even as the government opposed the HC’s intervention, arguing that fixing of a rate on goods is the job of the executive, the court highlighted the extraordinary problems posed by the pandemic.
It said absence of adequate medical resources "forced persons infected with coronavirus, their relatives and friends, to fend for themselves and thus, find necessary means for survival."
The fact that enough beds were not available in hospitals which were required for critically patients, "forced other patients to look for sources for supply which provide a viable alternative to LMO. Oxygen concentrators appeared to be that alternative. It is in this context that one would have to take judicial notice of the fact that since the production and supply of the oxygen concentrators did not commensurate with its demand, people looked for resources beyond our borders for supply of oxygen concentrators," the HC underlined.
The bench said government "should relent, or at least lessen the burden of exactions" in the very least, in times of war, famine, floods, epidemics and pandemics "since such an approach allows a person to live a life of dignity which is, a facet of Article 21 of the Constitution." Till normalcy is restored State can "blunt the force of exaction" by granting rebates or permitting, import of vital medical equipment, drugs, medicines, for a defined period, it added, when the Centre refused to budge from its stand that oxygen concentrators can’t be treated at par with life saving drugs listed in law.
But HC was clear that "oxygen concentrator is, on the face of it, concededly, a piece of medical equipment that is required for treatment, mitigation, and/or prevention of the disease [i.e. coronavirus] or disorder in human beings" and said even tax must bend "to the will of equity in times of calamity which causes wholesale degradation in the human ability to contribute to the coffers of the State."
As a rider, HC said those importing it will have to give an undertaking to the authorities that the device is being imported for personal use and not commercial use.
Friday’s verdict came on the plea of a 85 year old Covid patient challenging the levy of IGST on a concentrator gifted to him by his nephew from abroad for medical use
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