Observing that a body massager cannot be categorised as an adult sex toy and hence cannot be included in the list of items prohibited for import, the Bombay High Court has quashed the order of the Custom department's confiscating consignments containing body massagers.
The court also remarked that the opinion that a body massager could be used as an adult sex toy was clearly the figment of imagination of the Commissioner of Customs.
Details of case
In April 2022, the Commissioner of Customs, as an adjudicating officer, refused to clear the consignment containing body massagers noting that they were adult sex toys and hence prohibited for import as per the Customs notification issued in January 1964. Aggrieved, the parties had approached the Central Excise and Service Tax Appellate Tribunal which, in May 2023, set aside the customs commissioner’s order.
The customs department challenged this before the HC.
Court's observations
The high court said that the findings recorded by the commissioner are “peculiar and clearly appear to be quite astonishing and too far-fetched, when he reduces in writing his vivid imagination on what an equipment for a body massage would be and more particularly on his perception on the perceived uses”.
“It was clearly the figment of the Commissioner's imagination and/or his personal perception that the goods are prohibited items,” a bench of Justices Girish Kulkarni and Kishor Sant said on Wednesday.
It also added that the body massagers are traded in domestic markets and are not regarded as prohibited items. Further, the judges said that the Commissioner had failed to act as a prudent official who would be expected to act reasonably while deciding the issue of clearance of goods.
The Customs Commissioner had relied on section 292(2) of the Indian Penal Code which says any book, pamphlet, paper, and drawing or any other objects that is deemed to be obscene if it is lascivious or appeals to the prurient interest.
The HC, however, said machines like massagers certainly cannot be compared with the companion items in the said entries which are in the nature of book, pamphlet, paper, drawing, painting, representation, figure or article and so on that are prohibited under the notification.
The Commissioner claimed that before prohibiting the body massagers, it consulted experts who opined that the same could be subjected to other uses.
However, the court said that merely because the goods could be subjected to an alternative use cannot be the test to hold that they were prohibited. “It appears that such experts clearly opined that although undoubtedly the item as imported was a body massager, however, it was also their opinion that the item could also be used for the purpose which the Commissioner contemplated,” the bench opined.
