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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 ..... hin 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic morals) and Section 112(b) of the Customs Act, 1962 (maintenance of public order and standards of decency or morality). A show cause notice dated 8-8-2019 was issued to the addressee and a personal hearing was granted on 22-2-2020. Based on the records available, the AO adjudicated the case (vide O-in-O No. 1268/2020 PAD-Air, dated 22-2-2020) thereby absolutely confiscating the adult toy under Section 111(d) of Customs Act, 1962 and imposing penalty of ₹ 5,000/- under Section 112(a) of Customs Act, 1962. 4. Aggrieved by the order, the importer filed this appeal praying for release of the goods and set aside the penalty on the following grounds : That the order of the lower authority is contrary to law, weight of evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon Hon ble Supreme Court s clarification regarding obscenity in the cited judgments and argued that the impugned goods could not be confiscated; that otherwise also there could not be any bar on individual importing toy and requested that the goods might be released without fine and penalty as the importer was willing to pay the appropriate duty and that the penalty of ₹ 5,000/- was very high compared to the goods value of ₹ 2,000/-. 6. The department s comments on the grounds of appeal has been forwarded vide PAD S letter dated 7-8-2020 by and large reiterated the Order-In-Original stating that the importer was served with the show cause notice dated 8-8-2019; that the importer didn t bother to reply to the notice, then a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issues to be decided are : (i) Whether the confiscation of the impugned item in terms of the Notification No. 1/1964-Customs, dated 18-1-1964 is proper and legally correct? (ii) Whether the penalty imposed is on the higher side? 8. It was argued by the appellant s Advocate that the 1964 Customs notification is not applicable in this case as it was related to prohibition of counterfeit coin or any obscene book, pamphlet, paper, drawing, painting, representation, figure or article. The order passed by the Appraiser, PAD is totally a non-speaking order and it has not identified and classified the item. The Hon ble Supreme Court s order in the case of [2006 (203) E.L.T. 360 (S.C.)] Tata Engineering Locomotive Co. Ltd. v. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. 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. 10. The order of the adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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