2024 (3) TMI 999 - HC - Customs

Confiscation of Goods - Penalty - Clearance of goods described as Caresmith Wave Body Massager - Commissioner, categorise the item not as a body massager, but an Adult Sex Toy - prohibited for import as per the Customs Notification No. 01/1964-Customs - HELD THAT - The only relevant portion of the notification is the underscored portion being Clause (ii), as referred by the Commissioner to label the goods as prohibited. Such clause prohibits import of the goods, namely, any obscene book, pamphlet, paper, drawing, painting, representation, figure or article. Necessarily, in our opinion, the different items as set out in Clause (ii) are required to be read ejusdem generis. These machines like massagers certainly cannot be compared with the companion items in the said entries which are in the nature of book, pamphlet, paper, drawing, painting, representation, figure or article, etc. This apart, we are in complete agreement with the findings as recorded by the tribunal that it was totally unwarranted and in our opinion, perverse for the Commissioner to take recourse to clause (ii) of the said Notification to regard the goods in question as prohibited goods, for more than one reason. Firstly, it was clearly the figment of the Commissioner s imagination and/or his personal perception that the goods are prohibited items. This was far from the legal consequence as brought about by the notification that the goods could be so categorized. We may add that such thinking of the Commissioner was beyond anybody s control. The notification also could not have supported such perception of the Commissioner when he regarded the goods as obscene. As rightly observed by the tribunal, and obviously as body massagers being traded in the domestic market, were not regarded as prohibited items, was certainly a relevant consideration. In the facts of the present case, the Commissioner (adjudicating officer) has failed to act as a prudent official who would be expected to act reasonably in deciding the issues of clearance of goods in question, which ought to have been strictly in accordance with law. Any perverse application of law would fall foul of the rules of legitimacy and fairness expected from a quasi-judicial authority. Such approach of the Commissioner has been rightly criticized by the tribunal. If what was observed by the Commissioner in the order-in-original is accepted to be the only test, it would amount to accepting personal views of the officer which would be something unknown to law. Such approach is certainly not permissible. We also say this in the context of the opinions which were gathered by the Commissioner. These experts invited by the department clearly opined that the goods in question were body massagers which could be subjected to other uses. Thus, merely because the goods can be subjected to an alternative use, of the nature, as the Commissioner contemplated, this can never be the test to hold that the goods were prohibited, when they otherwise satisfied the test of goods, which could be imported and sold. Thus, there was no material before the adjudicating officer, to categorize the goods under clause (ii) to be any obscene book, pamphlet, paper, writing, drawing, painting, representation, figure or article, and of objectional description, falling under the notification. Such view of the Commissioner was patently perverse. Thus, we are of the clear opinion that no substantial question of law would arise for our consideration as raised on behalf of the Revenue. The tribunal is correct in its view when it set aside the orders passed by the Commissioner. The appeal is without merit. It is accordingly rejected. Dismissed. No costs. In view of our aforesaid judgment confirming the order passed by the tribunal in the revenue s appeal against the firm, the present appeals are also required to be rejected. They are rejected for the reasons we have set out in deciding the aforesaid appeal against the revenue and in favour of the firm. Dismissed. No costs.

Summary

Issues Involved:
1. Classification of imported goods as "Adult Sex Toy" or "Body Massager".
2. Application of Customs Notification No. 01/1964-Customs dated 18 January 1964.
3. Interpretation of Section 292 of the Indian Penal Code.
4. Validity of the adjudicating officer's findings.

Summary:

Issue 1: Classification of Imported Goods
The respondent imported goods described as "Caresmith Wave Body Massager". The Commissioner of Customs classified these as "Adult Sex Toy" based on expert opinions and customer reviews. The Commissioner concluded that the goods were obscene and prohibited u/s 111(d) of the Customs Act, 1962. The tribunal criticized this finding, stating it was based on the Commissioner's imagination and not supported by any legal mandate.

Issue 2: Application of Customs Notification No. 01/1964-Customs
The Commissioner relied on Customs Notification No. 01/1964-Customs, which prohibits the import of obscene articles. The tribunal found that the Commissioner misinterpreted the notification by categorizing body massagers as obscene. The tribunal noted that body massagers are not prohibited for sale within national boundaries, indicating no restriction on domestic transactions of such goods.

Issue 3: Interpretation of Section 292 of the Indian Penal Code
The Commissioner referred to Section 292(2) of the IPC, which defines obscenity. The tribunal held that the Commissioner's reliance on this section to deem the goods obscene was erroneous. The notification lacked a clear definition of "obscene," and the Commissioner's interpretation was deemed perverse and unwarranted.

Issue 4: Validity of the Adjudicating Officer's Findings
The tribunal found the Commissioner's findings to be "too wide off the mark." The adjudicating authority's decision was based on personal perception rather than legal evidence. The tribunal emphasized that the goods, being body massagers, did not fall under the prohibited category as per the notification. The appeal by the revenue was dismissed, affirming the tribunal's decision to set aside the Commissioner's order.

Companion Appeals:
The companion appeals by the partners of M/s. Doc Brown Industries LLP, challenging the penalties imposed, were also dismissed. The dismissal was based on the same reasoning as the main appeal, confirming the tribunal's decision.

Conclusion:
The High Court dismissed the revenue's appeal, affirming the tribunal's decision that the goods in question were not prohibited and the Commissioner's findings were untenable. The companion appeals were also dismissed.