Categorising Body Massager As Adult Sex Toy, Officer's Imagination, Not Covered Under 'Prohibited Goods': Bombay High Court

The Bombay High Court has held that categorising the body massager as an adult sex toy was purely the officer's imagination.

The bench of Justice G. S. Kulkarni and Justice Kishore C. Sant has upheld the CESTAT's ruling, in which it was held that the view taken by the Commissioner was purely the Commissioner's imagination to categorise the item not as a body massager but as an adult sex toy. The sale of body massagers within the national boundaries was not subjected to any prohibition. In discarding the submission of the revenue to that effect, it was observed that the adjudicating authority had appeared to have found a cause to pause for ascertainment of his authority to determine goods as 'obscene' solely in international transactions, while no such restrictions were placed on domestic transactions for such categories of goods.

The respondent/assessee filed two bills of entries for clearance of goods described as “Caresmith Wave Body Massager." The concerned officer of the department, on examination of the goods, formed an opinion that the item, as imported by the respondent, is an “adult sex toy" and therefore was prohibited for import as per Customs Notification No. 01/1964, Customs dated January 18, 1964.

A show cause notice was issued to the respondent, calling upon the respondent to show cause as to why such goods ought not to be confiscated and penalties imposed, including on its partners.

The show cause notice was adjudicated by an order passed by the Commissioner of Customs, who held that the import in question was of prohibited goods as per the Customs Notification dated January 18, 1964; hence, the goods were liable for confiscation under Section 111(d) of the Customs Act, 1962.

The Commissioner also referred to the provisions of Section 292(2) of the Indian Penal Code, observing that items of import would be hit by the provision, which ordains that a book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object 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 the persons who are likely, having regard to all relevant circumstances, to read, see, or hear the matter contained or embodied in it.

The Commissioner, considering the effect of Notification No. 1/1964 dated January 18, 1964, issued under the provisions of Section 11 of the Customs Act, proceeded to hold that the import for such reasons would be covered by Clause (ii) of the notification, which prohibited the import of any obscene book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object.

The tribunal, considering the approach of the Commissioner and the contentions as urged on behalf of the department, severely criticised the findings as recorded by the Commissioner and held that the view taken by the Commissioner was purely the Commissioner's imagination, to categorise the item not as a body massager but as an adult sex toy.

The court held that merely because the goods can be subjected to an alternative use of nature, as the Commissioner contemplated, this can never be the test to hold that the goods were prohibited, when they otherwise satisfied the test of goods, which could be imported and sold.

Counsel For Petitioner: Karan Adik

Counsel For Respondent: Gopal Mundhra

Case Title: Commissioner of Customs NS-V vs. DOC Brown Industries LLP

Case No.: Customs Appeal (L) No. 582 Of 2024

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