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TMI Blog2020 (11) TMI 728X X X X Extracts X X X X X X X X Extracts X X X X ..... or AA/AO). 2. The appeal is regarding absolute confiscation of 1 No. of Adult Toy of value Rs. 2,000/- U/Section 111(d) of the Customs Act, 1962 and imposition of penalty of Rs. 5,000/- U/Sec. 112(a) of the Customs Act, 1962. 3. The brief facts of the case are that a post parcel addressed to the appellant arrived at the Foreign Post Office vide Post Parcel No. 260944 and was examined by the AO. The parcel was found to contain one adult toy which was prohibited in terms of C.B.E. & C. Notification No. 1/1964-Customs, dated 18-1-1964 and as per para 2.07 of FTP r/w Handbook of Policy volume-I of 2015-2020 (protection of public morals) and Section 112(b) of the Customs Act, 1962 (maintenance of public order and standards of decency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-2-2020 which shows the O-in-O was ante dated. The appellant placed reliance on the judgments of different forums to explain what is obscene. 5. Following the principles of natural justice, a personal hearing was given on 22-7-2020. Mr. A. Ganesh, Advocate appeared through video. He reiterated the submissions made vide the appeal and stated that the imported item was a massage vibrator as per the brochure available in Amazon.com. When the item is available for sale in amazon.com and other electronic sales platforms, it could not be held as a prohibited item citing Notification No. 1/1964, dated 18-1-1964; that he also relied upon Hon'ble Supreme Court's clarification regarding obscenity in the cited judgments and argued that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposed as per Section 112(a) of CA, 62 is mandatory and as per law; the case law of Navtej Singh Johar & Ors. v. UOI was mainly concerned with non-discrimination on the basis of sexual orientation and not applicable to the present case; that the O-I-O was issued on 22-2-2020; however, there was some technical difficulty in the generation of the DIN on that day which was incorporated in the post facto column of DIN generation page. 7. I have carefully gone through the facts stated in the appeal, Order-in-Original, the submissions made by the Advocate during the personal hearing, the department's counter and the case file. The issues to be decided are : (i) Whether the confiscation of the impugned item ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed item image as per case File No. S4/3788/2019-PAD (AIR)] 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 Gosamy v. UOI [(2007) 1 SCC 143] 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 departm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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