2020 (11) TMI 728 - Commissioner - Customs

Absolute Confiscation - quantum of penalty - import of Adult Toy - prohibited goods or not - Obscene Item or not - HELD THAT - The appraiser/AA has to give his justification how he has to come to conclusion that it was an adult toy. As per Notification No. 1/1964-Cus. only an article with respect to any obscenity is restricted. The imported item massager cannot be connected with any obscenity. As held by the Hon ble Supreme Court in the case of AJAY GOSWAMI VERSUS UNION OF INDIA AND OTHERS 2006 (12) TMI 500 - SUPREME COURT the definition of obscenity differs from culture to culture, between communities within a single culture and also individuals within those communities. Moreover, this is imported for personal use and a single piece. Without any evidence the impugned order has been passed. Therefore, the contention of the department that it is an obscene item to be detained and liable for confiscation is not tenable. Confiscation - penalty - HELD THAT - As the impugned goods is not a prohibited one, obviously it would not be liable for confiscation U/Sec. 111(d) of Customs Act, 1962. It is also observed that the principles of natural justice was not followed in this case by not giving a proper PH before deciding the matter. The AA has to follow the principles of natural justice as envisaged in the provisions of Customs Act. Otherwise, it would make liable the order for setting aside. As it has been held that the impugned item is freely importable, consequently it won t attract penalty. The order of the adjudicating authority is set aside with a direction to release the impugned goods on payment of appropriate duty. - Appeal allowed.

Summary

Issues:
Confiscation of imported adult toy under Customs Act, 1962
Imposition of penalty under Customs Act, 1962

Confiscation of Imported Adult Toy:
The appeal involved the absolute confiscation of an adult toy under Section 111(d) of the Customs Act, 1962. The case revolved around whether the item fell under the purview of Notification No. 1/1964-Customs, dated 18-1-1964, which prohibits certain items related to public morals and decency. The appellant argued that the item was a massage vibrator, not an obscene article, citing judgments on obscenity. The department contended that the item was a sex toy based on physical examination and labeling. The Commissioner found that the item was not obscene, as per Supreme Court precedents, and that the confiscation was improper. The lack of proper justification by the adjudicating authority and failure to follow principles of natural justice led to the decision to set aside the confiscation.

Imposition of Penalty:
Regarding the penalty imposed under Section 112(a) of the Customs Act, 1962, the appellant argued that the penalty was excessive compared to the value of the goods. The Commissioner, after determining that the item was not prohibited and thus not subject to confiscation, ruled that the penalty was not applicable. The decision to release the goods on payment of appropriate duty highlighted the absence of grounds for imposing a penalty. The order set aside the adjudicating authority's decision and directed the release of the goods without any penalty, emphasizing the importance of following natural justice principles in such cases.

In conclusion, the judgment addressed the issues of confiscation and penalty in the context of importing an adult toy, emphasizing the need for proper justification, adherence to legal provisions, and consideration of principles of natural justice in customs proceedings.