AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 263
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.... January, 2025, including products declared as 'Face Roller (Beauty Care Products)' under the Customs Tariff Head No. 39269099 (hereinafter "subject imported products"). It is stated that the entire consignment was examined by the Customs officials and all other products except the subject imported products consisting of 900 units were released. However, the subject imported products were seized by the Customs Department on 21st February, 2025 on the ground that the same have been mis-declared as 'Face Roller (Beauty Care Products)'. 4. Further to the seizure the Petitioner was issued summons to provide a statement with respect to the subject imported products. It is stated that vide letter dated 19th May, 2025 the proprietor of the Petitioner had submitted to the concerned officer that the subject import was the first import of the firm and that inadvertently the subject imported products were mis-declared. As per the Petitioner the subject imported products should have been declared as 'Silicone Male Massager' under Customs Tariff Head Code 90191010 which fall under the category of "Mechano-Therapy Appliances; Massage Apparatus; Psychological Aptitude-Testing Apparatus; Ozone ....
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....3. On 18th September, 2025, after hearing the parties in the said cases the Court had directed as under: "7. Considering the above position, let the Central Board of Indirect Taxes and Customs (hereinafter "CBIC") take a stand on this matter as to whether import of sex toys, such as the ones which are part of the subject imports, would fall under banned or prohibited by the Customs Department. Further, if import of the said products is banned or prohibited, then let the CBIC clarify on what basis the identical products of other companies are being allowed for import." 9. Thereafter, when the present petition was first listed on 25th September, 2025, the same was tagged along with the Techsync (supra). 10. Today, the Court has heard all these matters and it is submitted by ld. SSC that the Central Board of Indirect Taxes and Customs (hereinafter "CBIC") wishes to conduct an inter-ministerial consultation in order to arrive at a policy decision in respect of products similar to the imported products, including sex toys. Thereafter, the same shall be placed before this Court. 11. Insofar as merits of the case are concerned, Mr. Manish, ld. Counsel for the Petitioner ....
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....tion (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. 17. The crux of this matter is whether the subject imported products are in fact sex toys that are prohibited from import under the 1964 Notification on the ground of being obscene products. 18. 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 products for being adult sex toys and therefore obscene products under the 1964 Notification. The Petitioner therein being aggrieved by the same had appealed before the Appellate Tribunal which had set aside the seizure on the ground that the Commissioner's findings were comp....
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.... 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 foul of the rules of legitimacy and fairness expected from a quasi-judicial authority. Such approach of the Commissioner has been rightly criticized by the Tribunal. If what was observed by the Commissioner in the order-in-original is accepted to be the only test, it woul....
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....oducts 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. 21. 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 a consistent practice in this regard. 22. 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 children the State should not forget that the same content might not be offensive to the sensibilities of adult men and women. The incidence of shielding the minors should not be that the adult population is restricted to read and see what is fit for children. ....
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....tograph, 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 reading of sub-section (1) of Section 292, makes clear that a picture or article shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals to the prurient interest; and (iii) it tends to deprave and corrupt persons wh....