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Can one import oxygen for later or immediate use?

By: Adil Zawahir, Team,

With the onset of the unprecedented second wave of Covid- 19 pandemic and scarcity of oxygen in the country, the question of oxygen import gains importance. Read on, as the team answers this very important question for you.

As India faces a crisis against the rising number of COVID-19 cases, there has been an acute shortage of availability of medical Oxygen. One may wish to procure Oxygen for their friends and family in dire need in the light of the same. What does the law say with regards to buying and storing medical Oxygen in these testing times?

On 24 April 2021, the Government waived the Customs Duty and Health Cess for a period of three months. This applies to the import of medical oxygen and various other oxygen related equipment. And to fast-track the passage of such imports related to medical Oxygen, the Central Board of Indirect Taxes and Customs (CBIC) has also asked importers to submit a single-page online form describing the intended use of the import in case there are difficulties faced in getting an immediate customs clearance. The CBIC also tweeted the same on their Twitter handle. The tweet reads, “Attention Importers! In case of any difficulty faced regarding imports of Covid19 related equipment or medicaments, please provide details on the link for expediting customs clearances.”

Thus, there are no restrictions on the import of medical Oxygen into the country. However, there are other legal hurdles involved.

As per a Supreme Court decision, Medical Oxygen falls within the ambit of Section 3(b)(i) of the Drugs and Cosmetics Act, 1940. And as per the National List of Essential Medicines 2011, Oxygen is included under “anaesthesia”. This means that the Drug Controller General of India is responsible for the approval of licenses of specified categories of drugs, including manufacturing of Medical Oxygen as per Drugs and Cosmetic Act, 1940 and the Gas Cylinder Rules, 2016 under which filling, ownership, transport, and import of such gases is regulated.
Rule 29 of the Gas Cylinder Rules, 2016 prescribes that in the event of a gas cylinder filled with compressed gas being imported, it shall be done so only in accordance with the conditions of a license granted under the Rules as well as other provisions of the Foreign Trade (Development and Regulation) Act, 1992. Similarly, Rule 31 also states that “Every person desiring to import cylinders filled with any compressed gas or intended to be so filled shall produce personally or through his agent, before the Commissioner of Customs his licence for the import of such gas cylinders.”

Hence, we can see that a license is mandatory for the import of medical Oxygen.

Lastly, the Central Government is well within its powers to place restrictions to prevent hoarding of drugs such as medical Oxygen in times of emergency and in public interest. This has clearly been stated under Section 26B of the Drugs and Cosmetics Act. Such a restriction has not been placed as yet, but may well be set in the near future. If one plans to store medical Oxygen, they may find legal relief under the proviso to Section 10 of the Drugs and Cosmetics Act, which states that the prohibition on import of drugs shall not apply to imports in small quantities for personal use. This however is subject to a prescription by a registered medical practitioner and one must also make an application using Form MD-20 confirming that it is for bona fide personal use.

During these testing times, storing a valuable resource such as medical Oxygen could be detrimental to others who may be in immediate need of it. 

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