TMI Blog2004 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, 1962 could be attracted in respect of non-notified goods shifting the initial burden on the person claiming to be the owner or from whom the goods were seized to undertake establishing a negative proof that the goods were not smuggled. 2. Learned Counsel for the respondent, however, opposes the said contention on the ground that the application of Section 123 is limited to the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof. Burden always lies upon him who alleges a particular fact. Particularly when the provision is penal in nature, the burden lies on the prosecution. Section 123 curbs out exception to the general rule of evidence and creates a special rule applicable to the cases contemplated under sub-section (2) viz. gold and manufactures thereof and notified goods. Section 123 does not apply to non-notified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment as was held in Santosh Gupta v. Union of India, 1990 (48) E.L.T. 210 = 1991 (33) ECR 380. 6. However, the decision in Gian Chand (supra) deals with a different subject which has no manner of application in the present case. There it was not a question as to whether the goods seized was a notified goods or not. On the other hand, it was not seized by the Custom Authorities but was sei ..... X X X X Extracts X X X X X X X X Extracts X X X X
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