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Synopsis

The Bombay High Court recently dismissed an appeal filed by the customs department, which sought confiscation of an assignment containing body massagers on the ground that the goods were adult sex toys prohibited under a customs notification.

The division bench of the high court, comprising Justice Girish Kulkarni and Justice Kishor Sant, was hearing an appeal filed by the Customs Commissioner against the Central Excise and Service Tax Appellate Tribunal, which had allowed the appeal of the LLP against the confiscation order of the customs department.

Dock Brown Industries LLP filed two bills of entries for the clearance of goods described as "Caresmith Wave Body Massager."

The Customs officer, upon examination of the goods, formed an opinion that the item, as imported by the LLP, is an "Adult Sex Toy" and therefore was prohibited for import as per the Customs Rules.

During the adjudication by the commissioner, expert opinions were sought from a physiotherapist and a gynaecologist on the question of whether the said product is a body massager or an adult sex toy. Both experts were of the opinion that it was a body massager.

Based on a customs notification, the commissioner held that the consignment was covered under the definition that prohibited the import of obscene books, pamphlets, papers, writings, drawings, paintings, representations, figures, or any other object.

Against this order, the LLP approached the tribunal, which set aside the order while severely criticizing the findings of the Commissioner.

The tribunal held that the view taken by the Commissioner was purely the Commissioner’s imagination to categorize the item not as a body massager but as an Adult Sex Toy.

Subsequently, the commissioner filed an appeal against the order of the tribunal before the high court.

The high court in its order observed that it was the commissioner’s imagination and that such thinking was beyond anyone’s control.

“Firstly, it was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited iteams. 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,” the order reads.

The high court recorded that the commissioner 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.

Therefore, the high court upheld the order of the tribunal while noting that only because the goods could have alternative uses can never be the test to hold that the goods were prohibited.

“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,” the order states.