• Show cause notice for importing obscene article

Dear Sir/Madam,
I have ordered a sex toy for personal use from an international e-commerce site. For the same today I have received a show cause notice from Bangalore customs for "Importing obscene article" as per customs notification No. 1/64 dt 18.01.1964.
Here are the details:
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The notice says that Mr. XXX is hereby called upon to show cause to the undersigned at the foreign post office in Bangalore within 15 days of receipt of show cause notice as to why the “obscene article” imported should not be confiscated. 
It also says, “If no cause is shown against the action proposed to be taken herein above within 15 days of the receipt of this notice or if they fail to appear for the personal hearing fixed on (3 dates are mentioned here) the case will be decided exparte on the basis of available records”
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I don’t intend to keep the said article and customs can dispose the article as they deem fit.
What if I don’t reply to this notice? Will the customs destroy the article and close the case?
The letter also has two email IDs. Shall I send reply on these email IDs?

Thanks and regards,
XYZ
Asked 2 months ago in Civil Law

7 answers received in 1 day.

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10 Answers

grant your consent for the confiscation of obscene article in question. Additionally, request the custom authorities not to slap any penalty upon you in terms of section 112 of the Customs Act.

Vibhanshu Srivastava
Advocate, New Delhi
9148 Answers
184 Consultations

5.0 on 5.0

As per the said notification the import of such article in India is prohibited.

As per customs Act you are liable to pay penalty. IF failed to do so, custom court can seize your property same like in civil cases. Its good to appear before the officer.

Sanjeev Gupta
Advocate, East Delhi
98 Answers
1 Consultation

5.0 on 5.0

Customs will impose penalty on you and confiscate the obscene goods 

 

reply to show cause notice by email and speed post 

Ajay Sethi
Advocate, Mumbai
80471 Answers
4927 Consultations

5.0 on 5.0

1. You need not respond to the said show cause notice.

 

2. The Article will thereafter be confiscated by the postal customs department ex-parte.

 

3. It will be kept for some time in their 'Mal Khana' and thereafter will be destroyed.

Krishna Kishore Ganguly
Advocate, Kolkata
25047 Answers
722 Consultations

5.0 on 5.0

The customs department has seized the articles you have ordered as the act contradicts the Indian law which has been clearly mentioned in the show cause notice. 

 

 

It becomes your duty to issue a reply notice either denying the allegations leveled against you therein or admitting the commission of the offence mentioned in the notice. 

 

 

You may reply stating that you are not aware of the law prohibiting the purchase of such articles hence your ignorance of law may be pardoned,  that you are agreeing for the confiscation of the imported articles and ready to the penalty also,  if imposed,  hence the authorities may be requested to waive your personal appearance before them in this regard. 

 

It is better you send the reply notice by registered post to the given address in the show cause notice. 

T Kalaiselvan
Advocate, Vellore
70524 Answers
985 Consultations

5.0 on 5.0

You should apologise and state that you wouldn't do it again. Any fine levied should be paid.

Rahul Mishra
Advocate, Lucknow
11781 Answers
23 Consultations

5.0 on 5.0

1. If you don't reply the notice the matter will.be decided exparte, the customs will confiscate the item and levy the penalty. You will receive the order in original and have to pay penalty accordingly.

2. You may reply through the post on mentioned address also waive of the right of personal hearing.

 

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
125 Consultations

5.0 on 5.0

- Actually, there is no law stating that sex toys are not allowed in India.

- However, Section 292 of the IPC prevents the sale of any material or product that is ‘obscene’ in nature in India. But, no statement has been mentioned regarding the ‘Ban on Sex Toys in India

- Further, keeping sex toys at home for personal use, is not an offence unless the individual is private about its usage and functioning. Every individual has his/her private life and hence, they have the full right to do whatever they want to under those boundations.

- Further, the Kolkata High Court addressed the issue whether sex toys sold in India comes under the charges of “obscenity”. The Court held that the charges on obscenity cannot be held as they were not legally sustainable. Just because the toy brings out sexual desires, it cannot be labeled as ‘obscene’.

- Since, you got notice from Custom Department; hence you should give the reply of the show cause notice to the department and appear for personal hearing, and thereby declare before them that the said items are for personal use and not for sale to other persons. 

- But if the items you ordered is absolutely confiscated, then you will have to pay penalty. 

Mohammed Shahzad
Advocate, Delhi
5910 Answers
60 Consultations

5.0 on 5.0

Dear Sir,

 

Under sub-section (d) of section 111 and sub-section (d) of Section 113, any goods which are imported or attempted to be imported and exported or attempted to be exported, contrary to any prohibition imposed by or under the Customs Act or any other law for the time being in force shall be liable to confiscation. Section 112 of the Customs Act provides for penalty for improper importation and Section 114 of the Customs Act provides for penalty for attempt to export goods improperly. In respect of prohibited goods the Adjudicating Officer may impose penalty upto five times the value of the goods. It is, therefore, absolutely necessary for the trade to know what are the prohibitions or restrictions in force before they contemplate to import or export any goods.

  1. The terms "Prohibited Goods" have been defined in sub-section 33 of Section 2 of the Customs Act as meaning "any goods the import or export of which is subject to any prohibition under the Customs Act or any other law for the time being in force".
  2. Under section 11 of the Customs Act, the Central Government has the power to issue Notification under which export or import of any goods can be declared as prohibited. The prohibition can either be absolute or conditional. The specified purposes for which a notification under section 11 can be issued are maintenance of the security of India, prevention and shortage of goods in the country, conservation of Foreign Exchange, safeguarding balance of payments etc. The Central Govt. has issued many notifications to prohibit import of sensitive goods such as coins, obscene books, printed waste paper containing pages of any holy books, armored guard, fictitious stamps, explosives, narcotic drugs, rock salt, saccharine, etc.
  3. Under Export and Import Policy, laid down by the DGFT, in the Ministry of Commerce, certain goods are placed under restricted categories for import and export. Under section 3 and 5 of the Foreign Trade (Development and Regulation) Act, 1992, the Central Government can make provisions for prohibiting, restricting or otherwise regulating the import of export of the goods. As for example, import of second hand goods and second hand capital goods is restricted. Some of the goods are absolutely prohibited for import and export whereas some goods can be imported or exported against a licence. For example export of human skeleton is absolutely prohibited whereas export of cattle is allowed against an export licence. Another example is provided by Notification No.44(RE-2000) 1997 dated 24.11.2000 in terms of which all packaged products which are subject to provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1997, when produced/packed/sold in domestic market, shall be subject to compliance of all the provisions of the said Rules, when imported into India. All packaged commodities imported into India shall carry the name and address of the importer, net quantity in terms of standard unit of weights measures, month and year of packing and maximum retail sale price including other taxes, local or otherwise. In case any of the conditions is not fulfilled, the import of packaged products shall be held as prohibited, rendering such goods liable to confiscation.
  4. Another restriction under the aforesaid Notification issued by the Ministry of Commerce is that the import of a large number of products, presently numbering 133, are required to comply with the mandatory Indian Quality Standards (IQS) and for this purpose exporters of these products to India are required to register themselves with Bureau of Indian Standards (BIS). Non-fulfillment of the above requirement shall render such goods prohibited for import.
  5. Import and export of some specified goods may be restricted/prohibited under other laws such as Environment Protection Act, Wild Life Act, Indian Trade and Merchandise Marks Act, Arms Act, etc. Prohibition under those acts will also apply to the penal provisions of the Customs Act, rendering such goods liable to confiscation under section 111(d) of the Customs Act (for import) and 113 (d) of the Customs Act (for export).
  6. Any Importer or Exporter for being knowingly concerned in any fraudulent evasion or attempted evasion of any prohibition under the Customs Act or any other law for the time being in force in respect to any import or export of goods, shall be liable to punishment with imprisonment for a maximum term of three years (seven years in respect of notified goods) under section 135 of the Customs Act. Any person who is reasonably believed to be guilty of an offence, punishable under section 135, may be arrested under the provisions of section 104 of the Customs Act.
  7. Keeping in view the above penal provisions in the Customs Act to deal with any deliberate evasion of prohibition/restriction of import of export of specified goods, it is advisable for the Trade to be well conversant with the provisions of EXIM Policy, the Customs Act, as also other allied Acts. They must make sure that before any imports are effected or export planned, they are aware of any prohibition/restrictions and requirements subject to which alone goods can be imported/exported, so that they do not get penalised and goods do not get involved in confiscation etc. proceedings at the hands of Customs authorities.

 

Kishan Dutt Kalaskar
Advocate, Bangalore
5699 Answers
254 Consultations

4.8 on 5.0

1. Import of an obscene good is an offence, for which the buyer is liable to be prosecuted.

2. Send your reply stating that you do not intend to take the delivery of the product anymore, and custom is free to destroy/confiscate it.

Ashish Davessar
Advocate, Jaipur
30295 Answers
879 Consultations

5.0 on 5.0

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