Burden of proof for confiscation of non-notified goods remains on the Department absent Section 123 presumption.

Where goods are not notified under Section 123 of the Customs Act, 1962, the statutory presumption of smuggling does not apply, and the Department must affirmatively prove that the goods were of smuggled origin and illegally imported before confiscation can stand. On the facts stated, that burden was not discharged, and the goods were also described as freely available in the market. Confiscation was therefore not justified, and the impugned order was upheld while the appeal was rejected.

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Issues: Whether the seized goods, not being notified under Section 123 of the Customs Act, 1962, were liable to confiscation when the Department failed to prove that they were smuggled into India.

Analysis: The goods in question were not covered by the statutory presumption under Section 123. In such circumstances, the burden lay on the Department to establish that the goods were of smuggled origin and illegally imported. The record did not show discharge of that burden. The goods were also stated to be freely available in the market, and on that basis confiscation was not justified.

Conclusion: The confiscation was not warranted and the impugned order was upheld; the appeal was rejected.

Ratio Decidendi: Where goods are not notified under Section 123 of the Customs Act, 1962, the Department must affirmatively prove smuggled import before confiscation can be sustained.

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