March 27, 2024

By Vijay Kumar

WHAT did the adjudicating authority see?

We cannot be sure for he has been most reluctant to say but we surmise that what he saw, he considered an abomination - an abomination so vile that, according to him, no one in the world should be allowed to even glance at, let alone see. And what he saw as abomination that none should see, he drew upon his empowerment under customs law to confiscate absolutely.

These are the opening words of the FINAL ORDER NO: A/85949-85952/2023 dated 11/05/2023 of CESTAT Mumbai created in a captivating scholarly manner by Technical Member CJ Mathew.

And what he saw was something like this:

Is it obscene? This is supposed to be a body massager, but the Commissioner ruled that it is a sex toy. Read on ….. this sex story: -

An importer filed two bills of entry for clearance of goods described as "Caresmith Wave Body Massager". The Customs officer, on examination of the goods, formed an opinion that the item is an "Adult Sex Toy", and therefore, was prohibited for import as per the Notification No.01/1964-Customs dated 18 January 1964. A show cause notice dated 6 January 2022 was issued as to why the goods ought not to be confiscated and penalty imposed.

The show cause notice was adjudicated by an Order-in-Original dated 06 April 2022 by the Commissioner of Customs, who held that the import was of prohibited goods and were liable for confiscation.

The Commissioner held:

The impugned goods are not only visually but also intended to be used as obscene goods. Further, the medical opinion as brought out in foregoing paras also indicate that these can be used as Sex articles. Thus, it appears that the goods i.e. "Caresmith Wave Body Massager" are liable to confiscation under section 111(d) & section 111(m) of the Customs Act, 1962.

The aggrieved importer approached the CESTAT in appeal. In a highly stimulating order starting with the words,

What did the adjudicating authority see?

The tribunal severely criticized 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 an Adult Sex Toy.

The Tribunal observed that:

1. The sale of body massagers within the national boundaries was not subjected to any prohibition.

2. The adjudicating authority 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, on such category of goods.

3. The stand of the adjudicating officer based on the potential uses of the impugned goods to regard the goods as obscene and prohibited, was patently illegal.

4. The finding of the adjudicating authority that the impugned goods merit confiscation was "too wide off the mark", considering as to what the law would mandate.

5. The findings of the Commissioner are totally untenable.

Some exquisite excerpts from the Tribunal's decision.:

In any case, pleasure, and indulgence thereof, which may be anathema to those initiated into life, or term, of celibacy, is of no concern to a customs law and detriment to cross-border transactions on assumption of that concern veers dangerously close to pursuit of moral crusade.

We note that the 'claim' of the importer has not been controverted and that the adjudicating authority has not placed any evidence on record in support of his conclusion on 'preference' in usage. Indeed, it is even doubtful if perceived usage, whether primary or peripheral, can be regulated by the State for 'obscenity' filtering. For starters, it would be unthinkable for the State to consider intruding on engaging of stimulation for pleasure, whether alone or otherwise, in private except in circumstances of complaint of non-consensual or involuntary participation that then assumes the hue of a crime.

Among some people of traditional mores, even in contemporary times, indulgence in such activity, or even mimicking of such, may be considered as 'sin' - an expression more suited to ecclesiastical denouncement. Animals 'mate' and humans have 'sex' - a distinction born from capacity for thought and articulation and from the presumption that the former is a Pavlovian response to nature's incentive while the latter may be an end in itself with nature's intent being of peripheral concern. Whether that be casuistry or not, it can safely be said that this distinguishment of this human function as an intensely private activity that is not even to be hinted at in polite, cultured society vests public performance, or even representation of it, as 'obscene', at least for sexual content.

The aggrieved Commissioner is in appeal before the High Court. 2024-TIOL-480-HC-MUM-CUS

The High Court observed:

1. The findings as recorded by the Commissioner are peculiar and clearly appears 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, in the context of import in question. Apart from this, he also sought expert opinions from a physiotherapist and a gynaecologist on the question as to whether the said product is a body massager or an adult sex toy. 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.

2. Surprisingly, the Commissioner also referred to the provisions of the Indian Penal Code, inter alia observing that such item of import would be hit by the said 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 in the Order-in-Original had held:

I find that it is accepted fact that the goods are in the natures of goods which act as body massagers and capable of and being used as devices as adult sex toys to satisfy basic instincts of people.

It is seen on Internet, that the item (identical) is being traded on Amazon website. The reviews of customers and replies to customer queries questions and answers on Caresmith Wave Body Massager are:

Question: - ls the massager safe to use for women? Also is it washable?

Answer: - by one customer: Yes, safe and washable too.

Question: - can this be used for masturbation?

Answer: - by customer: Yes, it can be used; just clean it before using.

The Commissioner held that these answers confirm that the item is being used as Obscene Article (Sex Toys).

Further contention of the importer that since the goods are sold through e-commerce websites like Amazon and Flipkart the items cannot be prohibited, was not accepted by the Commissioner as e-commerce companies like Amazon, Flipkart are not competent to decide whether the goods are prohibited or not.

The High Court held,

1. The entire basis for the Commissioner to regard the goods in question which are 'body massagers' to be adult sex toys appears to be his perception on a reading of the notification No.1/1964 dated 18 January 1964. As on date, such notification is stated to be valid, although it is almost 60 years old.

2. Notification No. 1/1964-Customs inter alia prohibits import of any obscene book, pamphlet, paper, drawing, painting, representation, figure or article.

3. We are in complete agreement with the findings as recorded by the tribunal that it was totally unwarranted and in our opinion, perverse for the Commissioner to take recourse to the said Notification to regard the goods in question as prohibited goods, for more than one reason.

i. It was clearly the figment of the Commissioner's imagination and/or his personal perception that the goods are prohibited items.

ii. Such thinking of the Commissioner was beyond anybody's control.

iii. The notification also could not have supported such perception of the Commissioner when he regarded the goods as obscene.

iv. 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.

4. 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.

5. The Commissioner 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.

6. 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.

7. These experts invited by the department clearly opined that the goods in question were body massagers which could be subjected to other uses. Thus, merely because the goods can be subjected to an alternative use, of the 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. Thus, there was no material before the adjudicating officer, to categorize the goods to be any obscene book, pamphlet, paper, writing, drawing, painting, representation, figure or article, and of objectional description, falling under the notification. Such view of the Commissioner was patently perverse.

8. The tribunal is correct in its view when it set aside the orders passed by the Commissioner. The appeal is without merit. It is accordingly rejected.

It's a legal quagmire, where body massagers morph into potential adult toys and customs officers play the roles of moral arbiters. From the bewildered customs officer mistaking a harmless massager for a scandalous contraption to the tribunal's witty retorts dismantling the Commissioner's overactive imagination, it's a toy tale.

In the world of taxation, where the line between a body massager and an adult toy blurs, and customs officers moonlight as moral compasses, we find ourselves in a comedy of errors fit for the stage. As the drama unfolds, with tribunals dissecting the nuances of pleasure and import regulations, one can't help but marvel at the absurdity of it all.

Until next week