KAVITA PHUMBHRA Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) This appeal under S. 130 (I) of the Customs Act, 1962 is at the instance of an importer and is directed against an order dated April 17, 2009 passed by the Customs, Excise & Service Tax Appellate Tribunal, Calcutta, in Customs Appeal No. C- 393/08. The Tribunal thereby dismissed the appeal filed by the importer/appellant against the order of the Commissioner of Customs (Appeals) in which the appellant challenged the order of the Additional Commissioner of Customs by which certain goods imported by the appellant were confiscated on the ground of obscenity. Penalty was also imposed.

(2.) A trader by profession who is the appellant before us, in course of its usual business imported a consignment of certain items which, the appellant asserts, were meant for sale to adults only. The Assistant Commissioner of Customs, Appraising Group-VI, issued a notice under S. 124 of the Customs Act asking the importer to show cause why the concerned goods should not be confiscated under S. 111 (d) of the Customs Act or penal action under S. 112(a) of the Customs Act should not be taken against the importer for rendering the subject goods liable to confiscation by deliberate acts of unauthorised import . The main charge against the importer was that the goods imported were obscene in terms of the S. 292 (i) of the Indian Penal Code as it appeared to them to be lascivious and appealed to the prurient interest and that its effect would tend to deprave and corrupt persons who were likely to read, see, hear and enact the instructions contained or embodied in it. Other charges against the importer were, as appearing from the show cause notice, that these goods were not suitable to young persons.

(3.) The appellant sent a reply to the said show cause notice wherein a very specific point of law was taken that the notice was bad in law as the authority issuing the notice had no competence to do so. The value of the goods was more than rupees two lac and in terms of S. 122 (b) of the Customs Act and also in terms of the Board s circular an Assistant Commissioner of Customs had no jurisdiction to adjudicate the case having value of more than rupees two lac and under S. 124 of the said Act he cannot issue any notice recommending confiscation of goods without prior approval of an officer not below the rank of the Deputy Commissioner of Customs. On the charges of obscenity the appellant had given a detailed reply claiming that the word obscene has not been properly defined in the Act and that far more sexually explicit literature and materials were freely available in shops and circulate in the country. As such the charge of obscenity did not lie.