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TMI Blog2024 (3) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and Service Tax Appellate Tribunal whereby the respondent s appeal was allowed, by setting aside the order passed by the adjudicating officer (Commissioner of Customs), confiscating the goods and imposing penalties by an Order-in-Original dated 6 April 2022 passed on the show cause notice issued to the respondent. 2. The relevant facts are required to be noted: The respondent filed two bills of entries for clearance of goods described as Caresmith Wave Body Massager . The concerned officer of the department, on examination of the goods, formed an opinion that the item, as imported by the respondent, is an Adult Sex Toy , and therefore, was prohibited for import as per the Customs Notification No. 01/1964-Customs dated 18 January 1964. On such premise, a show cause notice dated 6 January 2022 was issued to the respondent calling upon the respondent to show cause as to why such goods ought not to be confiscated and penalty imposed including on its partners. 3. The show cause notice was adjudicated by an Order-in-Original dated 6 April 2022 as passed by the Commissioner of Customs, who held that the import in question was of prohibited goods as per the Customs Notification dated 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falls under category of Obscene Article {Sex Toys) packaged in a cloth bag. The box is having a charging cable also. It is seen on Internet, that the item (identical) is being traded on amazon website-https:/ /www.amazon.in/Caresmith-Massager-Sports-Relidf-Entire/dp/B08 CZSD7KF. The reviews of customers and replies to customer queries by suppliers, like the Customers/users reviews on questions and answers on Caresmith Wave Body Massager are Question:- ls the massager safe to use for women? Also is it washable? Answer by one the customer : Yes safe and washable too. Question: - can this be used for masturbation? Answer by the customer: Yes it can be used just clean it before using confirms that the item is being used as Obscene Article (Sex Toys). Further contention of the importer that since the goods are sold through e-commerce websites like Amazon.in and Flipkart.com the items cannot be prohibited is not tenableas e-commerce companies like Amazon, Flipkart are not competent to decide whether the goods are prohibited or not. 51.2 In this context the provision of S. 292 of the Indian Penal Code reads as. Section 292 in The Indian Penal Code For the purposes of sub-section (2), a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les thus, it appears that the goods i.e. Caresmith Wave Body Massager imported by importer, Doc Brown Industries LLP vide abovementioned 7 Bills of Entry as per table-1 total declared Assessable value of Rs. 1,74,87,298/- (Rs. One Crore Seventy Four Lakh Eighty Seven Thousands Two Hundred and Ninety Eight only) arc liable to confiscation under section 111(d) section 111(m) of the Customs Act, 1962. 7. The respondent being aggrieved by the Order-in-Original, approached the tribunal in the appeal in question. The tribunal, considering the approach of the Commissioner and the contentions as urged on behalf of the department, severely criticized the findings as recorded by the Commissioner and held that the view taken by the Commissioner was purely the Commissioner s imagination, to categorise the item not as a body massager, but an Adult Sex Toy. It was observed that the sale of body massagers within the national boundaries was not subjected to any prohibition. In discarding the submission of the revenue to that effect, it was observed that the adjudicating authority had appeared to have found a cause to pause for ascertainment of his authority to determine goods as 'obscene' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned notification lacked definition of 'obscene' was not unknown to the adjudicating authority is not in doubt as seen from the attempt to fill that gap by reference to deeming provision in the Indian Penal Code, 1860. when it is mandatory and infact necessary to read the general definition of obscene as laid under Section 292(b) of the IPC 1860 as it also deals with imports? 4. Whether the CESTAT erred in passing a complicated and a convoluted order riddled with complex jargon rather than simply the issue? 9. We have heard learned Counsel for the parties. We have perused the record. 10. At the outset, we may observe that the entire basis for the Commissioner to regard the goods in question which are body massagers to be adult sex toys appears to be his perception on a reading of the notification No. 1/1964 dated 18 January 1964. As on date, such notification is stated to be valid, although it is almost 60 years old. It is quite possible that in regard to some of its contents, the notification may also have lost its efficacy in the contemporary times. Be that as it may, as the said notification was the very foundation to trigger the Commissioner s thoughts on the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification; (ix) cotton yarn manufactured outside India, such as is ordinarily imported in bundles, if each bundle containing such yarn has not been conspicuously marked- a. with the name of the manufacturer /exporter, or whole-sale purchaser in India, of the goods, and b. with an indication of the weight and the count of the yam contained in it, accordance with the rules made under section 82 of the Trademarks Act, 1999 (x) cotton sewing, darning crochet or handicraft thread manufactured outside India, if each of the units in which the thread is supplied has not been conspicuously marked- a. with the name of the manufacturer, exporter, or whole-sale purchase in India, of the goods, and b. with the length or weight of the thread contained in it and in such other manner as is required by the rules made under section 82 of the Trademarks Act, 1999. (No. 1 Cus/F.No.4/10.63 Cus.VIII) S. VENKATESAN Dy. Secretary (Clauses (iii), (iv) and (vii) has been omitted; by Notification No. 48/2007 dated 8/5/2007) (In clause (viii), for the words and figures section 117 of the Trade and Merchandise Marks Act, 1958, the words and figures section 139 of the Trademarks Act, 1999 has been substituted; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rohibit clearance of any goods, this would cross all boundaries of the customs officials being governed by law and the rules. 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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