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2020 (11) TMI 728 - Commissioner - CustomsAbsolute Confiscation - quantum of penalty - import of Adult Toy - prohibited goods or not - Obscene Item or not - HELD THAT:- The appraiser/AA has to give his justification how he has to come to conclusion that it was an adult toy. As per Notification No. 1/1964-Cus. only an article with respect to any obscenity is restricted. The imported item massager cannot be connected with any obscenity. As held by the Hon’ble Supreme Court in the case of AJAY GOSWAMI VERSUS UNION OF INDIA AND OTHERS [2006 (12) TMI 500 - SUPREME COURT] the definition of obscenity differs from culture to culture, between communities within a single culture and also individuals within those communities. Moreover, this is imported for personal use and a single piece. Without any evidence the impugned order has been passed. Therefore, the contention of the department that it is an obscene item to be detained and liable for confiscation is not tenable. Confiscation - penalty - HELD THAT:- As the impugned goods is not a prohibited one, obviously it would not be liable for confiscation U/Sec. 111(d) of Customs Act, 1962. It is also observed that the principles of natural justice was not followed in this case by not giving a proper PH before deciding the matter. The AA has to follow the principles of natural justice as envisaged in the provisions of Customs Act. Otherwise, it would make liable the order for setting aside. As it has been held that the impugned item is freely importable, consequently it won’t attract penalty. The order of the adjudicating authority is set aside with a direction to release the impugned goods on payment of appropriate duty. - Appeal allowed.
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