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The Supreme Court today stayed the order passed by Division Bench of Justice Rajiv Shahkhder and Justice Talwant Singh of Delhi High Court as per which the Court had held that the imposition of IGST on import of oxygen concentrators for personal use was arbitrary. 

Division Bench of Justice DY Chandrachud and Justice MR Shah while staying the operation of the judgement till further orders issued notice returnable within 4 weeks. 

“Learned Attorney General submits that on May 28, 2021 at 43rd meeting of GST Council decision was taken to further relieve covid 19 related items.GOM is to submit its report till June 8. It is submitted that HC has not considered the issue of policy. Issue notice returnable in 4 weeks. Liberty to serve dasti. Till further orders, we will stay the operation of the judgement.”, the Court noted in its order. 

The Court was hearing an appeal filed by the Ministry of Finance against the order dated May 21, 2021 vide which the division bench of Delhi High Court had quashed the notification bearing no. 30/2021-Customs, dated 01.05.2021 as per which an individual importer was required to pay 28% IGST qua oxygen concentrator gifted to him for personal use. The Court had observed that the exclusion of individuals from the benefits of notification dated 03.05.2021 only because they chose to receive the oxygen concentrators as a gift, albeit directly, without going through a canalizing agency is violative of Article 14 of the Constitution.

Learned Attorney General Shri KK Venugopal appearing for the Ministry of Finance apprised the court of the reduction in the percentage of IGST imposed on the import of oxygen concentrators. In this regard he contended that, “According to court Art 21 is violated if you impose tax. Earlier the IGST was 77%. We brought it down to 28% & it was further brought down to 12%. They still say that Art 21 is violated.”

It was also his submission that the GST Council in its 43rd meeting on May 28, 2021 had taken a further decision with regards to relieving CoVID 19 related items from the GST bracket and that the Group of Ministers had to submit its report till June 8, 2021 however the judgement was tying their hands.

“There are Oxygen Concentrators wherein we would consider reducing the IGST. However this can only be done if the judgement is stayed.”, AG further added.

“The HC has only taken into consideration the aspect of Art 14. The HC has only considered the purpose with regards to a needy person. There is a possibility that you haven't pressed your arguments before the DHC.”, Justice MR Shah said. 

The Supreme Court therefore has stayed the operation of the judgement until further orders. 

Case Title: Ministry Of Finance (Department Of Revenue), Government Of India Versus Gurcharan Singh |Slp(C) No. 7226/2021