Body massager can't be categorised as sex toy and prohibited for import: Court

The Bombay High Court has quashed an order passed by the Commissioner of Customs department confiscating consignments containing body massagers, stating that the action was based on “an imaginary / probable use of the goods” as the department had opined that the consignment could be used as “Adult Sex Toy,” which are prohibited for import.

The bench of Justices Girish Kulkarni and Kishor Sant said, "It was clearly the figment of the Commissioner's imagination and/or his personal perception that the goods are prohibited items."

The Commissioner of Customs confiscated the goods on April 6, 2022, claiming that the body massagers could be used as adult sex toys. Aggrieved by the Commissioner's order, the owners of the consignment had approached the Central Excise and Service Tax Appellate Tribunal. The tribunal, while setting aside the Commissioner's order, severely criticised the same and said the view taken by the Commissioner to categorise the body massager as an adult sex toy was purely the officer's imagination.

The Commissioner of Customs then challenged the Tribunal’s order before the Bombai High Court, which noted 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." The court noted that body massagers are traded in domestic markets and are not regarded as prohibited items.

The court said that the Commissioner (adjudicating officer) 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 also relied on section 292(2) of the Indian Penal Code, which says any book, pamphlet, paper, and drawing or any other object that is deemed to be obscene if it is lascivious or appeals to the prurient interest. The bench, however, said machines like massagers certainly cannot be compared with the companion items in the said entries that 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 had claimed that before deciding to prohibit the goods, the opinion of experts was taken who had opined that the body massagers could be subjected to other uses.

The bench, however, said 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 said.

The bench dismissed the petition filed by the Commissioner and upheld the tribunal’s order.