Burden of proof in confiscation of unnotified foreign-origin goods remains with the Department absent proof of smuggling.

Unnotified seized goods did not attract the burden-shifting rule, so the Department retained the initial burden to prove that the ball bearings were smuggled. Foreign origin and surrounding suspicious circumstances, including fictitious consigners and inability to identify the broker, were insufficient by themselves to establish smuggling. Suspicion could not replace proof, and the burden never shifted to the appellants. Confiscation was therefore not sustainable on the facts discussed.

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Issues: Whether confiscation of the seized ball bearings was sustainable when the goods were not notified, were of foreign origin, and the Department relied on surrounding circumstances to treat them as smuggled goods.

Analysis: The goods were not notified under the relevant customs burden-shifting provision. In such a case, the initial burden remained on the Department to establish that the goods were smuggled. Foreign origin by itself was not enough to justify confiscation. The fact that the consigners were found fictitious and that the appellants could not identify the broker created suspicion, but suspicion, however strong, could not substitute for proof. On the facts, the Department had not discharged the initial burden, and the burden did not shift to the appellants.

Conclusion: Confiscation was not sustainable and the appellants succeeded.

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