AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 264
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....ioner had imported two consignments of the said products on 23rd December, 2024 and 31st December, 2024, which were cleared by the Customs Department for home consumption. It is the case of the Petitioner that even at the time of clearance of the said consignments the same were duly examined by the Customs Department, verifying all the aspects, details, features, and end use of the imported products. 4. It is further stated that the Petitioner had thereafter imported two more consignments with the description of 'Head and Chic Massager' and 'Silicone Therapy Sleeve' which were seized by the Customs Department vide panchanamas dated 24th January, 2025 and 31st January, 2025, respectively. 5. It is stated that all the above four consignments were declared under the Customs Tariff Heading No. 90191090 which fall under the category of "Mechano-Therapy Appliances; Massage Apparatus; Psychological Aptitude-Testing Apparatus; Ozone Therapy, Oxygen Therapy, Aerosol Therapy, Artificial Respiration Or Other Therapeutic Respiration Apparatus". 6. The Petitioner aggrieved by the said seizure of the imported products has preferred these petitions seeking release of the imported product....
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.... wishes to conduct an inter-ministerial consultation in order to arrive at the policy decision in respect of products similar to the imported products, including sex toys. Thereafter, the same shall be placed before this Court. 13. Further, on the merits of the case, ld. SCC has relied on the SCN issued to the Petitioner and submits that broadly the grounds for continuing the seizure and detention of the imported products are as under: (i) That the imported products are sex toys which appear to be items of sexual pleasure rather than body massagers. The said products being obscene in nature are prohibited from importing in India in terms of the 1964 Notification and is penalised under Section 294 of the Bharatiya Nyaya Sanhita, 2023 (hereinafter "BNS, 2023"). (ii) That the imported products have not been licensed/certified by the Drug Controller General of India (hereinafter "DCGI") which would be required as the imported products are claimed by the Petitioner as therapeutic devices. (iii) That the Petitioner has failed to provide the Extended Producer Responsibility Registration Certificate under the Battery Waste Management Rules, 2022, which is requ....
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....ovisions of Section 294 of BNS, 2023 which corresponds to Section 292 of the Indian Penal Code, 1860. The said provision reads as under: "294. Sale, etc., of obscene books, etc.-(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, including display of any content in electronic form shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it. 21. The crux of this matter is whether the imported products have been mis-declared by the Petitioner as body massagers and are in fact sex toys, that are prohibited from import under the 1964 Notification on the ground of being obscene products. 22. This issue in respect of similar products has already been decided by the Bombay High Court in DOC Brown Industries (supra), where the Commissioner of Customs had seized the said pr....
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....s 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. 13. Further and most significantly the very foundation of the objection of the Commissioner being on the basis of an imaginary/probable use of the goods, for the purposes as opined by him, raises more complications. If the test of mere imagination or ingenuity is to be applied to prohibit 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 fou....
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....ame being used as sex toys, the Commissioner had acted in violation of the law. 24. Insofar as the 1964 Notification is concerned the Bombay High Court was of the view that the terms contained therein would have to be read ejusdem generis, and thus, only products in the nature of book, pamphlet, paper, drawing, painting, representation, figure or article, etc, would be prohibited. The products such as 'body massagers' would not fall within the scope of the 1964 Notification. 25. This Court is in agreement with the decision of the Bombay High Court. The question as to whether any product is obscene or not, cannot, obviously, be left at the discretion of the Commissioner of Customs and other individual officials, in the absence of uniform guidelines for consistent practice in this regard. 26. Further, on the issue of obscenity, the Supreme Court in Ajay Goswami v. Union of India, (2007) 1 SCC 143 has considered the jurisprudence on obscenity and considered the various issues involved in the determination of what is obscene. The relevant paragraphs of the same are as under: "Contemporary society 62. It was also submitted that in order to shield minors and ch....
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....ional standards would have to be considered. The relevant portion of the said judgement reads as under: "18. We are, in this case, concerned with a situation of the year 1994, but we are in 2014 and while judging as to whether a particular photograph, an article or book is obscene, regard must be had to the contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons. [...] Community standard test 23. We are also of the view that Hicklin test, is not the correct test to be applied to determine "what is obscenity". Section 292 of the Penal Code, of course, uses the expression "lascivious and prurient interests" or its effect. Later, it has also been indicated in the said section of the applicability of the effect and the necessity of taking the items as a whole and on that foundation where such items would tend to deprave and corrupt persons who are likely, having regard to all the relevant circumstances, to read, see or hear the matter contained or embodied in it. We have, therefore, to apply the "community standard test" rather than the "Hicklin test" to determine what is "obscenity". A bare readi....