The Delhi High Court in its judgment dated 21.05.2021 in the matter of Gurcharan Singh v. Ministry of Finance wherein the 85 year old Petitioner challenged the Govt. notification dated 03.05.2021 with respect to the levy of IGST on the import of oxygen concentrators as a gift for personal use without going through a canalizing agency, as violative of Article 21 of the Constitution.

The Delhi High Court has in its judgement observed that there is no justification in excluding individuals from the purview of notification 03.05.2021 only on the ground that they received oxygen concentrators directly as gifts from their friends and/or relatives located outside the country.

The High Court held that the exclusion of individual, such as the petitioner, from the benefits of the 03.05.2021 notification only because they chose to receive the oxygen concentrators as a gift, albeit directly, without going through a canalizing agency is, violative of Article 21 of the Constitution. It further held that, while it is permissible for the State to identify a class of persons to whom tax exemption would be extended, it is 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.

The Ministry of Finance challenged this decision before the Hon'ble Supreme Court. A bench of Justice DY Chandrachud and MR Shah heard the matter, and vide its order dated 01.06.2021 has stayed the operation of the Delhi High Court judgment dated 21.05.2021.

This was primarily on the argument of the Attorney General that, Significant relief has already been provided on personal imports of oxygen concentrators with reduction of duty incidence from 77% to 28% to 12% now.

It is to be noted that the GST Council was to consider these issues but, because of the High Court judgement the Council probably would not have been independently decided. However, with stay on the judgement passed by the Delhi High Court by the Supreme Court order, it will be worthwhile to await the decision of the Council and the interference of Courts may not be necessary in this complex taxation v. humanitarian issue.

By - George Thomas