2006 (3) TMI 421 - AT - Customs

Summary

Issues:
1. Appeal against order-in-Appeal setting aside absolute confiscation of goods meant for export.
2. Determination of whether the statues of Baby Ganesha in crawling position are obscene.
3. Evaluation of evidence and expert opinion regarding the alleged obscenity of the statues.
4. Consideration of invoices as supporting evidence in the case.

Analysis:
1. The appeal was filed challenging the order-in-Appeal that revoked the absolute confiscation of goods intended for export. The Commissioner (Appeals) extensively analyzed the nature of the confiscated goods, particularly focusing on the statues of Baby Ganesha in crawling position.

2. The Commissioner's findings emphasized that the statues of Baby Ganesha did not meet the criteria of obscenity based on various definitions provided. It was highlighted that the statues evoked feelings of affection, love, worship, and reverence, rather than appealing to lasciviousness or prurient interests. Reference was made to legal provisions and common parlance meanings to support the conclusion that the statues were not obscene.

3. The judgment also scrutinized the expert opinion provided by Shri Kailash Chand Sharma, the Mahant of a Ganesh Mandir, questioning his expertise in distinguishing between obscene and non-obscene statues. The absence of a certificate verifying his expertise from a recognized institution undermined the credibility of his opinion in the matter.

4. In evaluating the evidence presented, the Commissioner noted the lack of contrary evidence from the revenue department to challenge the conclusion regarding the non-obscenity of the statues. The reliance on the Mahant's certificate was deemed insufficient, especially considering uncertainties about the idols shown to him. Additionally, the respondent's submission of invoices from State Government enterprises, indicating the purchase of similar goods, was considered as supporting evidence.

In conclusion, the Tribunal dismissed the department's appeal, upholding the order-in-Appeal that set aside the absolute confiscation of the goods meant for export. The detailed analysis conducted by the Commissioner, the legal interpretations provided, and the evaluation of evidence and expert opinions played crucial roles in determining the non-obscenity of the statues of Baby Ganesha in the case.