Body massagers cannot be confiscated as adult sex toys without clear statutory prohibition on domestic sales

CESTAT Mumbai allowed the appeal regarding confiscation of imported body massagers classified as adult sex toys. The adjudicating authority had ordered absolute confiscation and destruction under notification 1/1964-Cus dated 18th January 1964, imposing penalties under sections 112 and 114AA of Customs Act, 1962. CESTAT held that body massagers, unlike adult sex toys, are classifiable under First Schedule to Customs Tariff Act, 1975, and their domestic sale remains unrestricted. The authority exceeded jurisdiction by determining obscenity solely for international transactions while permitting domestic sales of identical goods. The determination lacked legal basis as obscenity requires unambiguous statutory prohibition, and shape/features alone cannot justify confiscation. The Commissioner's appeal was dismissed as infructuous.

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Issues Involved:
1. Authority to Destroy Goods
2. Definition and Scope of Obscenity
3. Legality of Confiscation and Penalties
4. Misuse of Imported Goods

Summary:

1. Authority to Destroy Goods:
The adjudicating authority directed absolute confiscation and destruction of the goods. However, the Customs Act, 1962 does not provide any authority to destroy goods at any time. Section 125 of the Customs Act vests confiscated property in the Central Government, which can dispose of such goods only under statutory empowerment or Presidential delegation. The order to destroy the goods was beyond the legal competence of the proceedings and bordered on misappropriation of public property.

2. Definition and Scope of Obscenity:
The case revolved around whether the imported goods, labeled as "body massagers," were obscene. The adjudicating authority equated these goods to "adult sex toys" and deemed them obscene under section 292 of the Indian Penal Code, 1860. The court noted that "obscenity" must be measured against contemporary community standards and is not merely judged for containing descriptions of carnal intercourse. The court emphasized that the goods were material objects, not publications, and thus could not be deemed obscene merely based on their potential use.

3. Legality of Confiscation and Penalties:
The adjudicating authority imposed penalties under section 114AA of the Customs Act, 1962 for incorrect declaration in the bills of entry. However, the court found no allegation of non-declaration and thus no scope for invoking section 114AA. The court set aside the penalties as unjustified. The confiscation of goods under section 111(d) of the Customs Act, 1962 was also found to be based on an erroneous construction of the law. The court held that the goods were not specifically prohibited for import by any notification and that the adjudicating authority had no jurisdiction to determine the goods as obscene solely in international transactions while no such restriction existed for domestic transactions.

4. Misuse of Imported Goods:
The court found that the adjudicating authority's conclusion that the "body massagers" were "adult sex toys" based on their shape and features was unfounded. Expert opinions were divided on the potential use of the goods. The court noted that the use or misuse of an object by an individual is a matter of personal proclivity and that the goods were not prohibited by law. The court emphasized that the apprehension of misuse suggested by the shape and features of the goods did not justify their interdiction under customs law.

Conclusion:
The court set aside the confiscation and penalties imposed on the importer and individuals, finding the adjudicating authority's actions to be beyond legal competence and jurisdiction. The appeal of the Commissioner of Customs was dismissed as infructuous.

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