Advocate Sanskar Rajendra Nagar

Questions Answered by Advocate Sanskar Rajendra Nagar

Q: Are sex toys legal in india ? What are the rules and regulations to import sex toys in India

we just order sextoy for social experiment.but when it delivered in india they said you have to mail to custom so I did but then they said the contain is prohabited.so what should I do to get that product cause I paid for it. how to import sex toys in india ?

Advocate Sanskar Rajendra Nagar answered
 

1. Definition of Obscenity (Section 292(1)) (Section 294(1) of BNS)
   A book, pamphlet, paper, writing, drawing, painting, representation, figure, or any other object shall be deemed obscene if it is lascivious or appeals to the prurient interest, or if its effect (considering all items as a whole) tends to deprave and corrupt persons likely to read, see, or hear the content, considering all relevant circumstances.
2. Prohibited Acts (Section 292(2)) (Section 294(2) of BNS)
   Whoever:
   • (a) sells, hires, distributes, publicly exhibits, or circulates any obscene object, or possesses the same for such purposes,
   • (b) imports, exports, or conveys any obscene object for such purposes,
   • (c) participates in or profits from a business involving such obscene objects,
   • (d) advertises or makes known by any means that such obscene objects can be procured, or
   • (e) offers or attempts to do any of these acts,

• On first conviction: Imprisonment up to 2 years and fine up to ₹2,000 (₹5000 fine under BNS).
• On second or subsequent conviction: Imprisonment up to 5 years and fine up to ₹5,000 (₹10,000 fine under BNS).

1. Exceptions:
   • Items justified as being for the public good (science, literature, art, learning, or other objects of general concern).
   • Items kept or used bona fide for religious purposes.
   • Representations on ancient monuments or temples used for religious purposes.

• Under Section 292 IPC (Section 294 BNS), importing sex toys is considered illegal as they fall under "obscene" materials.
• According to the Chhatrapati Shivaji International Airport Customs website, pornographic and obscene materials are prohibited items for import.
• Under Section 111(d) of the Customs Act, 1962, such items are liable for confiscation.
• Additionally, under Section 112 of the Customs Act, 1962, penalties may be imposed.

• Upon seizure, the customs department issues a show cause notice to the importer.
• The importer must respond to this notice and may be required to attend a personal hearing (which can also be waived).
• After adjudication, the goods will likely be absolutely confiscated and penalties imposed as per the provisions mentioned.

Q: Legal advice for the section 84 state excise affect civil services

I am preparing for civil services. State excise filed fir against me section 84 common house drinking. The matter is in district court . Is this fir affect my career?? What are legal ways to come out safe?? Will it creates me problem in the selection of upsc?? As the matter is in court the court had given date of October of first trial. Is this charge has the serious impacts on government job what should be done?? Can excise police take the charge back , if not then what legal aspects remains?

Advocate Sanskar Rajendra Nagar answered
As per my knowledge, the Judge should let you go after informing you that you shall be charged with a fine upto Rs. 5000 which has been provided for in section 84 of the Bombay Prohibition Act, 1949. I advise you to accept the charge against you but at the same time request the Judge to not impose a harsh penalty and also inform him about your preparation for the UPSC exams and how this will mentally affect your preparations for the same. Since only a fine will be imposed, I don't think that should disqualify you from appearing from the exams. However, there should not be any ongoing Criminal case against you in a Court of Law once you appear for the exam. I also suggest you to also take the appropriate advice from the Judge and the Police regarding this by being polite to them as you don't have any other option. They should get to know about UPSC preparations and hence might take a lenient view in the matter and also give some good advice in this regard. I'd advise you to yourself do some research on this and go through the relevant examination rules and disqualifications in this regard.

Q: Legal query regarding applicability of GST

I am having a commercial office premises (On Ownership basis) in a fully commercial building in Andheri, Mumbai. I pay for the Maintenance and the Property Tax to the Builder every 6 months when they raise the Bill. This time in the Bill they have applied 18% GST on the Property Tax component as well. When asked, they say that there is no Society formed for the Building and since BMC issues one common Bill for the entire Building's Property Tax, they have to charge GST even on the Property Tax component in the Bill. Please clarify if they can charge me GST on the Property Tax which in itself is already a Tax. Thanks.

Advocate Sanskar Rajendra Nagar answered
TRU under FAQS issued from file no.332/04/2017 -TRU (Sr. no.1) clarified that services provided by the Central government, ----or local authority to a person other than business entity, is exempted from GST. So if property tax collected by the RWA /Cooperated Society on behalf of the MCGM from individual flat owner, then, GST is not liable. In view of this clarification the builder must be asking you to pay GST. 2.In my opinion this does not appear to be a correct interpretation by the builder for the following reasons :I.Property Tax is not subsumed in the GST, therefore, it can not be considered as a supply of service under section 7 of the CGST ACT 2017. Not being the supply of service GST should not be liable on the Property Tax, andII.TRU vide its circular no.192 /02/2016-ST dated 13.4.2016 (Sr no.3)clarified that taxes, cess or duties levied are not CONSIDERATION for any particular service as such and hence not liable to Service Tax. These taxes, cess or duties includes --Property Tax. 4.There is merit in your case but you have to contest the issue. This may benefit not only you but others as well.

Q: Payment of GST as Service tax & Vat already paid for flat registration

I had done my registration of the flat on June 26th 2017. My builder took the Service tax and Vat for the total amount mentioned on the Sales agreement in the month of June 2017. The cheque for the full amount by the bank was given on 13th July 2017. Am I liable to pay GST since I have already paid the Service Tax and Vat in June. Registration of the flat was done on June 26th that is before July 1st. Please give me your feedback.

Advocate Sanskar Rajendra Nagar answered
As per Notification No.28 /2011 -ST, dated 1.4.2011 construction of residential complex service is treated as continous supply service for the purpose of point of taxation rules, 2011. Further, as per proviso to rule 3 of above rules in case of continous supply service where the provisions of the whole or part of the service is determined periodically on the completion of an event in terms of a contract, which requires the receiver of the service to make any payment to service provider, the date of completion of each such events as specified in the contract shall be deemed to be the date of completion of provision of service. 3. Therefore, to examine the issue in detail under both -The Finance Act, 1994 and GST act, 2017 and to give a suitable reply the following facts /documents are required to be known and examined :1. The invoice /invoices raised by the builder, 2. The agreement copy. 3. Copy of challan evidencing payment of service tax by the builder to the service tax department, and4. The correspondence received from the builder and the department if any for the payment of GST.

Q: Can I act now to avoid a notice from customs for importing a sex toy

Hello sir I have ordered a sex toy from a global e commerce website without being aware that the item is in the prohibited items list. The parcel is in transit to Kolkata Airport Sorting office. I am afraid I'll receive a show cause notice from the Assistant Commissioner about this act. Can I write through a lawyer to the Assistant Commissioner about the matter and say that I do not wish to import the shipment anymore and to confiscate or send it back to the sender as they seem fit ? or should I wait for the show cause notice and then counter it ? Is there anyway for me to request any authority between Kolkata Airport sorting office and Kolkata customs check to intercept the parcel and destroy/send it back to the sender before the parcel reaches the customs for inspection ? I thought declaring contents about the parcel beforehand and not claiming it now would be better than the customs examining it which leads to a show cause notice. Kindly let me know which would be a wise step

Advocate Sanskar Rajendra Nagar answered
Since the import/sale of sex toys is banned in India as per IPC section 292 and is a prohibited item, the import of the same by you is in contravention of the law and hence it will be liable for absolute confiscation alongwith penalty. A show cause notice will be issued to you by the department wherein you may choose to appear for the personal hearing or waive the same after filing a reply. Since, you wish to disclose the same to the relevant authority before being served with a show cause notice, you may do the same by writing a letter to them. However, you may still have to pay the penalty once the goods get confiscated.