TaxTMI 
TaxTMI 
2011 (7) TMI 433
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....gnment of certain items which, the appellant asserts, were meant for sale to adults only. The Assistant Commissioner of Customs, Appraising Group-VI, issued a notice under S. 124 of the Customs Act asking the importer to show cause why the concerned goods should not be confiscated under S. 111 (d) of the Customs Act or penal action under S. 112 (a) of the Customs Act should not be taken against the "importer for rendering the subject goods liable to confiscation by deliberate acts of unauthorised import". The main charge against the importer was that the goods imported were obscene in terms of the S. 292 (i) of the Indian Penal Code as it appeared to them to be lascivious and appealed to the prurient interest and that its effect would tend to deprave and corrupt persons who were likely to read, see, hear and enact the instructions contained or embodied in it. Other charges against the importer were, as appearing from the show cause notice, that these goods were not suitable to young persons. The appellant sent a reply to the said show cause notice wherein a very specific point of law was taken that the notice was bad in law as the authority issuing the notice had no compe....
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....appellant given any letter or query from the concerned group. Ultimately on January 7, 2008, the importer/appellant filed a writ-petition before this High Court for release of the goods which had been detained illegally by the departmental officers and at that stage, the appellant was surprised to receive the purported show cause notice issued by the Assistant Commissioner Customs, Appraising Group-VI, through their Customs Handling Agent. According to the appellant, the show cause notice illegally treated the furniture stand, drinking glass, gift in tin box, decorative tape, and toilet roll in tin as obscene without having any idea about the expression of obscenity. It was specifically asserted that those goods were freely available at all major metropolitan cities in India and were sold against proper bills. Some such items were purchased by the appellant and the appellant craved leave to produce those before the Assistant Commissioner at the time of hearing. A very specific case was taken by the importer was that the Assistant Commissioner did not consider the appellant's case that the goods would be sold to purchasers not below the age of twenty and as such they did n....
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....vocate appearing for the respondents, tried to meet the said objection by claiming that the Additional Commissioner had authorised the Assistant Commissioner to issue the said notice. In support of his claim records were produced in court from which we were not convinced about any such authorisation. That apart, when the importer had taken the very specific point about the competence of the issuing authority before the Additional Commissioner, it was only expected that he would at least speak about the authorization said to have been made by him, in his order. He in fact has not touched on this point. If the claim of the respondents at the hearing was correct then it was only very surprising that in spite of a specific point being taken by the importer, the Additional Commissioner who is said to have authorised the Assistant Commissioner to issue the show cause notice, would not mention anything in his order about the alleged purported authorization. The silence thus militates against the claim of the respondents about the authorization and also suggests that the respondents had no answer to the point of law raised by the importer. The Commissioner of Customs as well as the Tribuna....
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....of any definition of "deprave and corrupt" as also the want of any guideline as to the kind of influence that was meant. His Lordship expressed certain alternatives - whether it was criminal conduct, general or sexual that was feared or departure from some code of morality, sexual or otherwise or from accepted or other beliefs or arousing of erotic desires, normal or abnormal. His Lordship was of the opinion that some, perhaps most of these alternatives, involved deep questions of psychology and ethics. The misgiving was candidly expressed that the Act provided for a formula which could not be applied in practice. Geoffrey Robertson in his celebrated work, Obscenity : An account of Censorship Laws and their Enforcement in England and Wales (London, 1979), had commented that the results were not tolerable for any rational system of law because of its uncertainty and incompatibility, largely revolving on the sexual outlook of the particular jurors. The formula of 'depravity and corruption' was loyally applied by the courts", "the author observed, "but not without considerable confusion over the appropriate gloss which the English language could provide to assist jurors and ....
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....I.R. 1965 S.C. 881, had observed that in a prosecution under S. 292 of the Indian Penal Code the offending novel or the portions which are the subject matter of the charge must be judged by the court. But at times an expert opinion may be valuable. The Supreme Court also never meant to shut out the expert opinion altogether. Before the Customs Excise and Service Tax Appellate Tribunal the appellant filed an application for polacing on record an expert opinion given by Ms. Ratnottama Sengupta, a media commentator, an art critic and a member of the Advisory Panel of the Central Board of Film Certification and a former member of the General Council and the publication committee of Rastriya Lalitkala Academy and a jury of several National and International Film Festivals. Ms. Sengupta was of the view that one could not object to the goods in question and she recorded that in her capacity for the posts she had held, she had had on several occasions to draw a fine line between art erotica and obscenity. After carefully looking at the samples of the catalogue provided by the importer she concluded that in the glass games there was nothing objectionable about the transparent glas....
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....s apprehension again sounds rather far-fetched. If that be so, no film certified by the Censor Board as for adults only may also not be released. For, one cannot really pre-empt the possibility of young people sneaking into or making arrangements for viewing these adult films. On such analogy everything meant for an adult including an adult book or a film, may equally be vulnerable to a young man. On this logic import of an article cannot be prohibited on the slender ground of an uncertain eventuality. To decide whether an article has a baneful effect and if it may deprave a young mind there are certain fixed and objective parameters, psychological standards, community standards and the like. Geoffery Robertson in his treatise on Obscenity (supra) refers to a Canadian case and observes that the community whose standards are relevant must be the entire population and not those which dominate a particular locality or class. Without first appreciating the target users of these games the conclusion reached by the authorities below on the basis of personalised value judgment is not sustainable in law. The Commissioner of Customs (Appeals), held that obscenity was not....
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....f a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. Exception. - This section does not extend to- 1. any book, pamphlet, paper, writing, drawing, painting, representation or figure- 1. the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or 2. which is kept or used bona fide for religious purposes; 2. any representation sculptured, engraved, painted or otherwise represented on or in - (2) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or (3) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose. A bare reading of this section makes it clear that it does not provide for any definition of obscenity as such. Instead, what we get are certain co....
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....r story falls suffer in their moral outlook or become depraved by reading it or might have impure and lecherous thoughts aroused in their minds. The charge of obscenity must, therefore be judged from this aspect". Justice Hidaiyatullah, in the case of Ranjit D Udeshi (supra), pointed out that it was not easy to draw the two tests for labeling a work as obscene because "art has such varied facets and such individualistic appeals that in the same object the sensitive sees only the obscenity because his attention is arrested not by the general or artistic appeal or message, which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross". Again in a more recent case of Ajoy Goshwami -vs- Union of India, reported in AIR 2007 S.C. 493, the apex court was considering an Advocate's petition praying to the court to direct the authorities to strike a reasonable balance between the fundamental right of freedom of speech and expression enjoyed by the press and the duty of the government to protect the vulnerable minors from abuse, exploitation and harmful effects of such expression. While dismissing the writ petition Supreme Court re....
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....ome vague and individualized standards and imposed in an overbearing manner. The Tribunal below while passing the impugned order has simply not cared to offer any reason why it considered the concerned items as obscene. Merely by reciting the rules of the games as printed on individual items, the same cannot be adjudged as obscene without anything more. Assigning tangible and substantial reasons was particularly necessary because obscenity has neither any fixed definition nor an inflexible standard. Instead what we get in the Tribunal's order is only a conclusion that it considered certain items as obscene and practically nothing more. The Customs authorities as also the Tribunal below failed to appreciate that when certain goods were to be sold to a certain section of the population i.e. the adults in the present case, they were expected to conduct themselves in a responsible and adult manner. The apprehension that if they fall in the hands of the minors or young men they are likely to deprave their morals, is not a sustainable logic for confiscating the goods. As mentioned earlier, moral standards vary from community to community and from person to p....