2025 (11) TMI 1742 - HC - Customs

Review under Order XLVII Rule 1 CPC dismissed; customs told to release imported body massagers after EPR application

Techsync And M/s. Debanjan Impex Versus The Superintendent Of Customs SIIB ACC Imports And Ors, Union Of India & Ors.

HC dismissed the review petition filed by customs authorities challenging its earlier order on provisional release of imported body massagers/sex toys. ... Seeking review of order - Order XLVII Rule 1 read with Section 114 and Section 151 of the Code of Civil Procedure, 1908 - import of body massagers or sex toys - requirement of license/certificate by the Drug Controller General of India - failure to provide the Extended Producer Responsibility Registration Certificate (EPR Certificate) under the Battery Waste Management Rules, 2022, which is required since certain products were found to be battery operated - HELD THAT:- There was no satisfactory answer given by the Respondents in the counter affidavit dated 24th April, 2025 as well - the review of the order dated 30th October, 2025 completely lacks merit and the Customs Department is clearly harassing the Petitioners for no reason. Let the application for EPR Certificate, if not filed, be filed by the Petitioner in terms of the Public Notice: 46/2023. Subject to the same, the provisional release of the imported goods shall be effected within two working days - review petition dismissed - List for compliance on 9th December, 2025. 1. ISSUES PRESENTED AND CONSIDERED (1) Whether the review petitions disclosed any ground under Order XLVII Rule 1 read with Sections 114 and 151 of the Code of Civil Procedure, 1908, warranting review of the order directing provisional release of imported goods and inter-ministerial consultation. (2) Whether the imported products described as massagers/body massagers/sex toys required prior licence/approval from the Drug Controller General of India under the Medical Devices Rules, 2017. (3) Whether the absence of an Extended Producer Responsibility Registration Certificate under the Battery Waste Management Rules, 2022 justified refusal of provisional release of the imported goods, in light of the applicable Public Notice. (4) Whether the conduct of the Customs Department in seeking review, despite release of similar consignments of the petitioners and third parties and concealment of relevant FAQs and Public Notice, amounted to arbitrary harassment warranting dismissal of the review with costs and personal consequences. 2. ISSUE-WISE DETAILED ANALYSIS Issue (1): Grounds for review under Order XLVII Rule 1 CPC Interpretation and reasoning (a) The Court noted that the primary contentions now raised in review - regarding the need for DCGI licence/approval and production of EPR Certificate - had already been urged by the Customs Department when the original order dated 30 October 2025 was passed. (b) The Court observed that the review petitions did not disclose any new material, error apparent on the face of the record, or any other recognised ground for review; instead, they sought a rehearing on contentions already considered. (c) The Court also took into account that relevant materials, namely the FAQs of the Central Drugs Standard Control Organisation and the Public Notice permitting post-release EPR applications, were not disclosed by the Customs Department earlier and had in fact been concealed. Conclusions (d) The Court held that no ground for review under Order XLVII Rule 1 read with Sections 114 and 151 CPC was made out and that the review petitions were devoid of merit. Issue (2): Requirement of DCGI licence/approval for imported massagers under Medical Devices Rules, 2017 Legal framework (as discussed) (a) The Court examined Question 51 of the Central Drugs Standard Control Organisation (Medical Devices Division) 'Medical Devices Frequently Asked Questions', which clarifies that massagers intended for soothing or general wellness purposes and not for any therapeutic purpose do not fall under the Medical Devices Rules, 2017; only those intended for therapeutic use, alleviation of disease or disorder, etc., are regulated under those Rules. Interpretation and reasoning (b) On a perusal of the FAQs, the Court found that the imported massagers/body massagers/sex toys in issue were not shown to be intended for therapeutic use or for alleviation of disease or disorder, but only for wellness and soothing purposes. (c) In that factual context, the Court held that the Customs Department's insistence on a DCGI licence/certificate had no basis under the Medical Devices Rules, 2017, as understood and clarified in the FAQs. (d) The Court recorded that these FAQs, which directly answered the regulatory question, had been concealed from the Court by the Customs Department. Conclusions (e) The Court concluded that the imported products, being massagers for wellness/soothing purposes and not for therapeutic/medical use, did not require approval/licence from DCGI under the Medical Devices Rules, 2017, and that this ground could not justify withholding or revisiting the earlier order of provisional release. Issue (3): Effect of absence of EPR Certificate under Battery Waste Management Rules, 2022 on provisional release Legal framework (as discussed) (a) The Court considered Public Notice No. 46/2023 dated 25 May 2023 issued by the Commissioner of Customs, which clarifies that applications for Extended Producer Responsibility Registration Certificate under the Battery Waste Management Rules, 2022 can be filed even after the release of goods. Interpretation and reasoning (b) The Court observed that some of the imported products were battery-operated, attracting the requirement of EPR registration, but in light of the Public Notice, such registration could validly be sought post-release. (c) It was noted that one of the petitioners had in fact already filed an application for EPR Certificate, and that the existence and effect of the Public Notice had been concealed by the Customs Department. (d) The Court reasoned that, since the regulatory scheme itself permitted post-release applications for EPR registration, the absence of an EPR Certificate at the time of import could not be used to refuse provisional release of the consignments. Conclusions (e) The Court held that the requirement of EPR Certificate under the Battery Waste Management Rules, 2022 did not bar provisional release of the goods and directed that, if not already done, the petitioners must file EPR applications in terms of Public Notice 46/2023, whereafter provisional release was to be effected within two working days. Issue (4): Arbitrariness, selective treatment, and imposition of costs on Customs officials Interpretation and reasoning (a) The Court recorded that earlier consignments of the petitioners as well as similar consignments of various third parties, including products of well-known brands, had been cleared by the Customs Department without objection. (b) The Court referred to pleadings and to its earlier order noting that similar goods were available on e-commerce platforms and that similar products had been imported and cleared under the same HS classification by other importers, including specific examples cited by the petitioners. (c) The Court noted that, when queried, counsel for the Customs Department had admitted that similar products of other companies had not been stopped and were permitted to be imported, and that the counter affidavit did not provide a satisfactory explanation for such differential treatment. (d) The Court observed that, in the face of these facts, the Customs Department had persisted with review proceedings based on grounds already rejected, while suppressing relevant FAQs and Public Notice which undermined its own stand. (e) In this backdrop, the Court concluded that the Customs Department was clearly harassing the petitioners without justification and acting in a selectively adverse manner toward their consignments. Conclusions (f) The Court dismissed the review petitions as lacking merit and as an instance of unnecessary harassment. (g) The Court imposed costs of Rs. 25,000/- in each review petition to be paid to the petitioners by the Customs Department, specifically directing that the costs were liable to be deducted from the salary of the concerned Assistant Commissioner of Customs. (h) The Court directed that provisional release of the imported goods be effected within two working days, subject to filing of EPR applications where not already filed, and listed the matter for compliance on a specified date.