Libertatem Magazine

Imposition of IGST on Oxygen Concentrators Received as Gifts for Personal Use, Unconstitutional: Delhi High Court

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Facts of the Case 

The Petitioner is 85 years old. The Petitioner approached the Court against the imposition of 12% IGST on the import of the oxygen concentrator gifted by his nephew. The State scaled down the IGST to 12% on oxygen concentrators imported by individuals for personal use, that are supplied free of cost. The State exempted oxygen concentrators imported for COVID relief where the importer was the State Government or, any entity, relief agency, or statutory body, authorized in this regard by any State Government.

Arguments presented before the Court


The counsel for the Petitioner submitted that notification and the actions of the State are violative of both Articles 14 and 21 of the Constitution. He further added that oxygen concentrators would fall within the ambit of Entry no. 607A, Tariff Item no. 9804 of the General Exemption no. 190. The definition of drugs as provided in Section 3(b) of the Drugs and Cosmetics Act, 1940 includes medical equipment used for treating and preventing human disease. The Government of India amended Foreign Trade Policy, 2015-2020 to permit the import of life-saving drugs/medicines, oxygen concentrators, and Rakhi received as gifts and exempted it from Basic Customs Duty (BCD). Thus, the same principle should apply to IGST. 


The request received for extending GST exemptions qua COVID-19 related supplies will be placed before the GST Council. The BCD has been reduced from 38.5% to nil and IGST has been scaled down from 28% to 12%. The imposition of IGST on imported oxygen concentrators that are for personal use does not violate Article 21 of the Constitution. 

Observation of the court

The Court observed that the imposition of tax by the State is valid unless it falls foul of legislative competence or is violative of or ultra vires the Constitution. Taxing statutes are amenable to judicial review under Article 14 of the Constitution. The State just to tax something does not have to tax everything. 

The definition of drugs is given in Section 3(b) 26 of the Drugs and Cosmetics Act includes medical equipment like an oxygen concentrator. It is a piece of medical equipment that is required for treatment, mitigation, or prevention of the disease or disorder in human beings. Thus, the imposition of IGST on oxygen concentrators is violative of Article 21 of the Constitution of India.

The Court believed that the compliance of clause (a) of condition no. 104 appended to entry no. 607A of the General Exemption No. 190 would be enough. If the persons with similar circumstances as the Petitioner submit a letter of undertaking to the officer stating that the oxygen concentrator would not be put to commercial use, it is enough. 

Court’s Decision

The Hon’ble Court held that imposition of IGST on oxygen concentrators imported and received by the individuals as gifts for personal use, is unconstitutional.

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