Customs Act, 1962 – Confiscation & Penalty – Merely because the imported goods can be subjected to an alternative use, this can never be the test to hold that the goods were prohibited – Order is illegal

Two bills of entries for clearance of goods described as Caresmith Wave Body Massager” were filed.   However, the officer opined the item as prohibited and issued the show cause notice dated 6.1.2022.

The order dated 6.4.2022 was passed for confiscation under Section 111(d) of the Customs Act, 1962, on vivid imagination on what an equipment for a body massage would be and more particularly, on his perception on the perceived uses in the context of import in question. Moreover, expert opinions from physiotherapist and a gynecologist show that the said product is a body massager or an adult sex toy.   Thus, although the product imported was a body massager, it was in their opinion that it could also be used for another purpose.

The Commissioner of Customs, therefore, held that the correct description of goods was not given and the importer has attempted to smuggle the prohibited obscene goods.

The Tribunal, however, allowed the appeal of the importer and held that view of the Commissioner was purely his imagination vide order dated 11.5.2023

In appeal before the High Court, it was held that it was in complete agreement with the findings of the Tribunal that it was totally unwarranted and perverse for the Commissioner to treat the imported goods as obscene goods.   Firstly, it was clearly the figment of the Commissioner’s imagination and/or his personal perception that the goods are prohibited items.   The notification also could not have supported such perception of the Commissioner.   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.  The very foundation of the objection on the basis of an imaginary / probable use of the goods, raises more complications.  Thus, merely because the goods can be subjected to an alternative use, this can never be the test to hold that the goods were prohibited.

Judgment dated 20.3.2024 in Customs Appeal (L) No.582 of 2024 of the Commissioner of Customs NS-V Vs. DOC Brown Industries LLP with connected matter