2008 (9) TMI 725 - Commissioner - Customs

Issues Involved:
1. Whether the imported goods are obscene under Section 292(1) of the Indian Penal Code and the Customs Notification No. 1-Cus., dated 18th January, 1964.
2. Whether the goods are harmful publications under the Young Persons (Harmful Publication) Act, 1956.
3. Whether the goods are liable for confiscation under Section 111(d) of the Customs Act, 1962.
4. Whether the importer is liable for penal action under Section 112(a) of the Customs Act, 1962.
5. Whether the lower authority's decision was valid without expert opinion.

Detailed Analysis:

1. Obscenity of Imported Goods:
The Department argued that the goods were obscene as per Section 292(1) of the Indian Penal Code, which prohibits lascivious content that appeals to prurient interests and tends to deprave and corrupt persons. The goods included items such as "Glass Games," "Carton Games," and "Toys (Dart and Shooter Games)" with explicit instructions for performing erotic acts. The lower authority concluded that these goods were obscene and ordered their confiscation. The appellant contended that the authority misunderstood the terms "obscenity," "sensuous," and "sexually explicit," and that the goods were not intended for minors but were labeled for adult use only.

2. Harmful Publications:
The Department also argued that the goods were harmful publications under the Young Persons (Harmful Publication) Act, 1956, as they were not suitable for young persons and violated the provisions of the Foreign Trade Policy. The appellant did not provide a specific counter-argument on this point but emphasized that similar products were available globally without objection.

3. Liability for Confiscation:
The goods, valued at Rs. 2,36,185 (CIF), were deemed liable for confiscation under Section 111(d) of the Customs Act, 1962, for violating the Customs Notification No. 1-Cus., dated 18th January, 1964, which prohibits the import of obscene articles. The lower authority's decision to confiscate the goods was based on the obscene nature of the imported items.

4. Penal Action Against Importer:
The importer was found liable for penal action under Section 112(a) of the Customs Act, 1962, for deliberately importing prohibited goods. A penalty of Rs. 40,000/- was imposed on the appellant, which the appellate authority deemed just and fair considering the nature and value of the goods.

5. Validity of Decision Without Expert Opinion:
The appellant argued that the lower authority's decision was invalid without an expert opinion on the obscenity of the goods. The appellate authority noted that the determination of obscenity is the responsibility of the court and does not necessarily require expert opinion. The Supreme Court in Ajay Goswami v. Union of India held that the court could rely on its own assessment and, if necessary, seek views from literary personalities. The lower authority had sought an opinion from Shri S. Mukhopadhyay, Regional Officer, Central Board of Film Certification, who declined to provide an opinion. The appellate authority concluded that the lower authority's decision was valid and did not require an expert opinion.

Conclusion:
The appeal was rejected, upholding the lower authority's decision to confiscate the obscene goods and impose a penalty on the importer. The appellate authority found that the goods met the legal test of obscenity and that the lower authority had acted within its jurisdiction without the need for expert opinion.

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