Delhi HC rules that IGST on oxygen concentrators imported by individuals for personal use is unconstitutional.
Sai Krishna Muthyanolla
May 26, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks on disregard of COVID safety protocols in Kumbh Mela and Char Dham, directions regarding circumventing exorbitant fees charged by private hospitals for COVID patients, the right of voters to know criminal antecedents of candidates, and directions on the welfare of unorganized sector workers.
Supreme Court: Directs Centre to file reply on position of National Database for Unorganised Workers (NDUW).
In taking suo moto cognizance of the present COVID-19 crisis, the Supreme Court (SC) directed the Centre to file a reply on the position of National Database For Unorganised Workers (NDUW), which may serve as registration for extending different schemes by the States and Centre.
Currently, there is no uniform process of registration. There is separate registration of workers under the Building and Other Construction Workers’ (Regulation of Employment and Conditions of Service) Act, 1996. Under the ‘Unorganised Workers Social Security Act, 2008’, all States have framed the rules and some States have also undertaken registration under the aforesaid Acts but no State has given any details as to whether registration under the ‘Unorganised Workers Social Security Act, 2008’ is complete. The Court, however, noticed that the ‘Unorganized Workers Social Security Act, 2008’ now stands repealed by the Code of Social Security Act, 2020. In Section 112 of the Code of Social Security, 2020, registration of unorganized workers, gig workers, and platform workers is contemplated. The Court, hence, asked the Union of India to apprise it on steps which are proposed to be taken in this regard.
The judgement highlights that for accessing benefits of any Central or State scheme framed for the benefit of unorganized workers or migrant workers, registration of workers is essential. Without proper registration and identity card, accruing these benefits seems to be difficult on the ground.
The apex court directed that registration of unorganized workers should be completed as early as possible and there should be a Common National Database for all organized and unorganized workers situated in different states. The court noted that the process has already been initiated by the Ministry of Labour and Employment and instructed that it should be completed with collaboration and coordination of states.
With regard to distribution of dry ration by the States to the migrant workers, the court has directed all States to file affidavits indicating the mechanism by which the dry ration would be distributed to those migrant workers who do not possess a ration card. The judgement also emphasised that it is the responsibility of the States/Union Territories to provide Community Kitchen to the stranded migrant workers, who have lost their employment or are in need of meals, and directed all the States/Union Territories to make such facilities operational. Further, the court insisted that there should be a suitable mechanism to monitor and supervise whether the benefits of the welfare schemes reach the beneficiaries.
Bombay HC: Upheld the disqualification of BJP corporator Ashok Raul for not disclosing his criminal antecedents in nomination form.
The Bombay high court observed that the voters have the right to know about antecedents of candidates in the election and upheld the disqualification of a BJP Corporator Ashok Raul, who won from Thane’s ward 12-D in 2017, for not disclosing his criminal antecedents in his nomination form.
Ashok Raul who won from Thane’s ward 12-D in 2017 was disqualified by a civil court’s verdict for not disclosing his criminal antecedents in his nomination form. In the present case, the said verdict was being challenged in the Bombay high court.
After examining all submissions, the court noted that Ashok Raul did not disclose all of his criminal antecedents which is against the provisions of the Representation of the People Act. The bench also referred to several judgments of the supreme court and emphasized that the Supreme Court ruling of ‘voters must know everything about the candidate,’ also applies to Corporator level elections and not only on MP and MLA level polls, as corporations are also democratic institutions of local self-governance.
Delhi HC: IGST on oxygen concentrators imported by individuals and received by them as gifts, for personal use, is unconstitutional.
In the case Gurucharan Singh v. Ministry of Finance, the high court held that the imposition of Integrated Goods and Services Tax (IGST) on oxygen concentrators imported by individuals and received by them as gifts, for personal use is unconstitutional.
The court was hearing a plea filed by an 85-year-old individual challenging a notification (dated 01 May 2021) issued by the Ministry of Finance stating that it would force payment of IGST of 12% on imported oxygen concentrators gifted to individuals for personal use. It is relevant to note that before 01 May 2021, an individual importer would have had to pay IGST at the rate of 28% for an oxygen concentrator for personal use. This stood in contrast to oxygen concentrators which were imported for commercial use. The IGST on oxygen concentrators, which are imported for commercial use, was and continues to be leviable at the rate of 12%.
The counsel for the central government submitted that IGST on oxygen concentrators imported by individuals for personal use was scaled down to 12%. The State avers that it went a step further by issuing yet another notification (dated 03 May 2021) whereby, it exempted, completely, oxygen concentrators imported for the purpose of COVID relief from the imposition of IGST in cases, where the importer was the ―State Government or, any entity, relief agency or statutory body, authorized in this regard by any State Government. To this, the bench opined that since the State has come so far, it could go a little further and exempt even individual importers who had been supplied oxygen concentrators free of cost from bearing the burden of IGST.
In conclusion, the court quashed the notification (dated 01 May 2021) that forced payment of IGST of 12% on imported oxygen concentrators gifted to individuals for personal use. To obviate misuse of the oxygen concentrators, by the petitioner and/or persons similarly circumstanced, the court held that they would have to furnish a letter of undertaking to the officer designated by the State that the same would not be put to commercial use. The petitioner should submit a letter of an undertaking within seven days of the State intimating/notifying the particulars of the officer designated for this purpose.
Andhra Pradesh HC: Private hospital bills of COVID-19 patients to be made through Nodal Officers.
In addressing a bunch of PILs regarding the COVID situation in the state, the Andhra Pradesh high court directed the state government to work out modalities for payment of private hospital bills of COVID-19 patients through a Nodal Officer, in order to avoid exorbitant charges being levied by them.
The court took note of the All-India Lawyers Union’s suggestion that in order to curb the menace of excessive treatment bills, instead of paying the money directly at the counter of the Hospital, the same can be routed through the Nodal Officer/Help Desk Manager. In case of excess billings, the same can be checked at that stage itself. The high court held the suggestion to be a potentially effective way of managing the current situation and directed the states to make arrangements for the same.
The PILs also highlighted that most of the Covid-care centres have been established at the outskirts, making them inaccessible due to distance. To this, the court directed the State to consider establishing covid care centres within the town area, if permissible, and to see that transport facilities are available for transporting covid patients to the nearest covid hospitals in times of need. The court also took note of huge gatherings outside shops, more particularly at liquor shops, in the relaxed hours during the lockdown and directed the authorities concerned to post Police Constables outside such shops to maintain COVID protocol.
Uttarakhand HC: Critical remarks against State Government’s failure to maintain COVID norms.
The high court made critical remarks against the State Government for allowing the ‘Kumbh Mela’ and failing to ensure COVID protocols in the temples and religious festivals. With respect to the Char Dham, the court also observed that in Badrinath and Kedarnath, the concerned priests were not maintaining social distancing COVID protocols.
The court highlighted that the Kumbh Mela was permitted during the COVID-19 pandemic, where over 10 million devotees congregated over several weeks, without any enforcement of COVID norms. In the same vein, the court slammed the state government for not informing about the steps to implement the standard operating protocol (SOP) for Char Dham. Although the Char Dham Yatra has been suspended by the Government, the high court held that the Government must ensure that the SOP issued by the Char Dham Management is adhered to strictly.
Emphasizing the grave danger posed by the present COVID wave, issues like Black Fungus, and the approaching 3rd wave of COVID, the court lamented that the State Government had ignored the warning given by experts about the second wave of the COVID-19 pandemic and further directed the State to strictly enforce the SOP for Char Dham to avoid further spread of the virus.
Featured Image: Imporant Court Judgements