Customs can’t confiscate body massager on grounds that it can be used as a sex toy: Bombay HC

HC upholds Central Excise and Service Tax Appellate Tribunal order releasing body massagers confiscated by customs on grounds they could be used as sex toys

The Bombay high court on Wednesday upheld an order passed by the Central Excise and Service Tax Appellate Tribunal, ordering the release of some consignments of body massagers confiscated by the Commissioner of Customs. The commissioner had held that the imported goods could also be used as “adult erotic toys” and were, therefore, prohibited.

The Commissioner had also imposed penalties on three traders for importing the “prohibited” goods. (File photo)

“Merely because the goods can be subjected to an alternative use, of the nature 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,” said the division bench of Justice GS Kulkarni and Justice Kishore C Sant.

On April 6, 2022, the Commissioner held that the goods—Caresmith Wave Body Massagers—were “prohibited goods” under a 1964 Customs Notification and were required to be confiscated under the Customs Act, 1962.

The Commissioner had sought opinions from a physiotherapist and a gynaecologist to ascertain if the imported product was a body massager or an adult erotic toy. The experts opined that though the item was a body massager, it could also be used for pleasure.

The Commissioner, an adjudicating authority under the Customs Act, had also imposed penalties on three traders for importing the “prohibited” goods.

The traders appealed the matter before the tribunal, which struck down the Commissioner’s order, prompting the department to move the high court, challenging the tribunal order.

The high court, on Wednesday, dismissed the appeals, observing that the findings recorded by the Commissioner were “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 bench held that the Customs department was not justified in relying on the Customs Notification, which prohibits the import of obscene articles, to declare the body massagers as prohibited goods merely because they could also be used as adult erotic toys.

The clause, the bench said, prohibits the import of obscene goods.

“These machines like massagers certainly cannot be compared with the companion items in the entries (banned under the Notification) like obscene books, pamphlets, papers, drawings, paintings, representations, figures or articles, etc.”