Point of Law: Levy of Tax -Misuse of oxygen Cylinders - Imposition of IGST on oxygen concentrators which are imported by individuals and are received by them as gifts [i.e. free of cost] for personal use, is unconstitutional.

JUDGMENT :

RAJIV SHAKDHER, J :

TABLE OF CONTENTS

Prologue: -

1. 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. Chased and riven by the merciless novel Coronavirus, the citizenry has been driven to desperation and despair.

2. Scarcity of liquid medical oxygen [in short “LMO”], medicines, oxygen concentrators, hospital beds, ventilators, and other medical equipment, crucial for battling against the infection caused by the virus, has 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.

3. On 04.05.2021, the captioned petition was moved before us. Despite the respondent [hereafter referred to as the “State”] being served with an advance copy of the petition, there was no representation on its behalf. The matter was posted on the next date, i.e., 05.05.2021 when, the State was represented by Mr. Chetan Sharma, Additional Solicitor General and Mr. Zoheb Hossain, Senior Standing Counsel. We, at that stage, carried the impression, that because of the prevailing chaos and confusion caused by the raging pandemic, the State had due to an oversight, not granted an exemption from imposition of Integrated Goods and Services Tax [in short “IGST”] on oxygen concentrators imported into the country, as a gift, for personal use. We had, in this belief, on 05.05.2021, observed as follows.

“1. Via the captioned writ petition, a challenge has been laid to the notification bearing no. 30/2021-Customs, dated 01.05.2021, issued by the respondent.

2. This writ petition represents one of those rare writ actions, whereby, a notification issued in the realm of a tax statute has been, inter alia, assailed under Article 21 of the Constitution.

2.1. That tax is an exaction by the State is well known. That its levy and collection, ordinarily, does not encompass equity, is also, well known. But, presently, we are living in difficult times and, therefore, perhaps, the petitioner has invoked Article 21 of the Constitution.

3. Yesterday, i.e., 04.05.2021, we had requested the learned Additional Solicitor General of India [in short “ASG”] to join the proceedings.

3.1. Today, Mr. Chetan Sharma, learned ASG along with Mr. Zoheb Hossain has joined the proceedings. Yesterday, i.e., on 04.05.2021 we had also noticed [a fact brought to our attention by Mr. Sudhir Nandrajog, learned senior counsel, who appears on behalf of the petitioner], that the respondent had issued a notification bearing no. 4/2021 - Customs dated 03.05.2021.

4. We are informed by the learned ASG that this notification has exempted imposition of IGST on oxygen concentrators imported by the State Government, or via any entity, relief agency or statutory body, authorised by the State Government. This exemption, according to the learned ASG, is, presently, available