HC allows duty free import of drug to treat black fungus till Centre decides on waiver

PTI, May 27, 2021, 6:25 PM IST

New Delhi: The Delhi High Court Thursday allowed duty free import of Amphotericin B, used for treating black fungus patients, primarily those affected by it after recovering from COVID-19, on furnishing of a bond by the importers till the Centre takes a final decision on waiving the customs duty on it.

The demand and supply gap for the medicine is widening by the hour and action on a “war footing” is needed by the central government to address it, the high court said.

“The gap is widening by the hour. It has to be done on war footing. Please understand that fight. Every hour counts,” it said.

The medicine is required to save the lives of thousands of people suffering from Mucormycosis and the central government shall seriously consider waiver of customs duty till the drug is in short supply in India, it added.

“We direct that if any import is made by any person of this drug (Amphotericin B), it shall be allowed on a bond furnished by the importer without the actual duty being paid, till a decision is taken by the Centre.

“The bond shall have the undertaking that in case the import duty is not waived, the duty shall be paid by the importer,” a bench of Justices Vipin Sanghi and Jasmeet Singh said.

Central government standing counsel Amit Majahan informed the court later that there is a notification by the Centre on complete waiver of customs duty on all life saving drugs, if imported by an individual for personal use, and Amphotericin B is included in the list of life saving drugs.

Advocate Nidhi Mohan Parashar, also representing the Centre, clarified however that it is exempted from duty if sent by a relative or friend free of cost from abroad.

The court responded that the discussion was if Delhi government wishes to purchase the medicine from abroad, it should also be duty free as the state will not be having any relative there and asked the counsel to take instructions on this aspect.

The issue came up during arguments on a plea by a black fungus patient who was not getting the medicine.

While one of the advocates informed the court that the import duty on the medicine was in the range of 27 per cent, another one said it was 78 per cent.

The Centre’s counsel said he was not aware of the exact percentage and will inform the court after taking instructions from the competent authority.

Central government standing counsel Kirtiman Singh submitted that the issue of waiving the import duty on such drugs will be communicated to the authorities during the day and a decision will be taken soon.

The bench said it was hopeful that the Centre will look at waiving the import duty.

“Considering the fact that the drug is required to safe lives of people being infected with black fungus which is infecting thousands of people across the country, the central government shall seriously consider waiver of complete custom duties on these drugs at least for the period when it is in short supply in India to treat the patients of Mycormycosis,” it said.

The court was also assured by the Centre that the customs department shall clear all consignments relating to COVID-19 and black fungus without any delay.

The bench also referred to the judgment of Justice Rajiv Shakdher, another judge of the Delhi High Court, holding as unconstitutional the imposition of Integrated Goods and Services Tax (IGST) on import of oxygen concentrators by individuals for COVID-19 patients.

“After Justice Shakdher’s order on IGST, is it even fair for you (Centre) to levy such duties? You should completely waive it. There should be no bottleneck on the import of such things. Waive it for some time at least,” the bench said.

The Centre’s counsel agreed that it could be done temporarily for two-three months.

The bench orally observed that if apart from the channels explored by the Centre, any other state government or individual can import the medicine in their own, it should be allowed.

If the Delhi government makes efforts to procure the drug from sources other than those explored by the Centre, they should not be stopped, it said.

The court further said it was nobody’s case that the Centre has put a ban on importing the drug and that it has not monopolised or canalised, therefore, it can be imported by an individual or a state.

According to the Union Health Ministry, mucormycosis or black fungus is a complication caused by a fungal infection. People catch mucormycosis by coming in contact with the fungal spores in the environment. It can also develop on the skin after the fungus enters the skin through a cut, scrape, burn, or other type of skin trauma.

The disease is being detected among patients who are recovering or have recovered from COVID-19.

Senior advocate Krishnan Venugoal submitted that there was an urgent need to tide over the immediate crisis and suggested that governments must explore reaching out to distributors apart from manufacturers of the drug and not wait for global tenders.

“If the Delhi Disaster Management Authority or the national authority were to make enquires from the distributor in Singapore and Dubai, we may tide over the patients who need to be saved immediately and consideration of cost should not come in the way,” he said.

Senior advocate Rahul Mehra, representing Delhi government, said if the Centre makes a statement that state governments were free to import the drug, all endeavours would be made by them to procure it.