TaxTMI 
TaxTMI 
2004 (7) TMI 95
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....s that whether Section 123 of the 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 ....
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.... on the person from whose possession the goods were seized; and (ii) 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. (....
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....in cases where Section 123, applies which has no general application. Under the rules of evidence one cannot be called upon to establish a negative proof. 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 applica....
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....r had admitted the goods to be smuggled but ultimately he retracted his statement, therefore, in such circumstances, the burden of proof lies on the department 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 i....