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2023 (7) TMI 776 - AT - CustomsSeeking provisional release of goods - Gold - Denial of access to the property - determination of actual ownership - exclusion of presumptive adjudicatory jurisdiction over the impugned goods - burden to prove u/s 123 of Customs Act, 1962 - HELD THAT:- A plain reading of the provision for ‘inversion of onus’ makes it abundantly clear that there is only one stage of verification; the shifting of onus is specific to the person from whose possession the goods were seized as well as, if there be any, other person claiming ownership thereto and, if these had been seized from possession of none, on any claimant of ownership. The target of the trigger for invoking this presumption of smuggling, and only in relation to goods specified in the provision or under the notifying authority of the Central Government, is the person from whom it was seized and/or any claimant of ownership. It is a principle in jurisprudence that ‘possession is nine-tenths of the law’ and (quite ironically, in the same numeral) section 110 of Indian Evidence Act, 1872 has transplanted that into law binding on customs authorities too. It is apparent that, in circumstances of there being no other claimant, and even if there was, the failure to ensure strict fulfillment of section 123 of Customs Act, 1962 cannot be overcome by adjudicatory restraint, self-imposed or externally prescribed, on withholding such process from the appellant. Consequently, the appellant is either the principal noticee in proceedings initiated under section 124 of Customs Act, 1962 till conclusion or the goods are not liable for confiscation and cannot be retained any longer: the two contingencies cannot exist, to the contrary, simultaneously. Even if show cause notice for confiscation of the impugned goods is warranted by failure to discharge onus, the owner must be placed on notice; it is not the claim in the impugned order that some other claimant has surfaced and nor does entertainment of that claim fall within adjudicatory jurisdiction under Customs Act, 1962. Every deprivation of property by presumption of illegal possession is a deviation from the presumption in Indian Evidence Act, 1962 supra and is empowered by specific law to the contrary; even these statutes exist to relieve possession in favour of the State and not to determine ownership - An investigation that is supposedly to culminate with establishing of facts to which known law is to be applied cannot be allowed to be perverted for the convenience of investigators to apply known law to contrived facts. Greater good may, doubtlessly, be a pure motive but such affirmation of motives, doing violence to the law, is an insinuating weed that will ultimately overwhelm rule of law. It is the law that should be applied to established facts and the established fact is that the owner, even if only ostensible, has not been issued with notice of intent to confiscate goods seized from their possession. Many moons beyond the stipulated period, under section 110(2) of Customs Act, 1962, for issue of such notice have come and gone without even a single notice proposing delayed issue of notice. Section 110(2) which is not contingent upon discretionary or even administrative exercise of any empowerment but absolute in intent must prevail in the absence of a constructive show cause notice recognizable by law. The seized goods are to be released forthwith to the appellant. Appeal disposed off.
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