TMI Blog1990 (11) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Vessel and it is the case of the Department that this appellant along with S/Shri Dilip Kumar Dutta, Subhas Chandra Roy and some others are involved in the removal of the contraband goods in question by keeping them in the cavity. This finding was challenged in the present appeal. 3. The learned Advocate, Shri D.K. Mukhopadhyay in the first instance contended that the seizure list copy was not furnished to the appellant. He stated that this is a serious infirmity. Secondly, he contended that the show cause notice is very vague. There are no circumstances to implicate the appellant that these goods are also removed by the appellant as an associate. He further contended that the only evidence on which reliance was placed by the Adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at about 2 a.m. they were not there since it was a recess period. They also stated that at that very time Shri Sadhan Chandra Mallick, the appellant was getting down along with 5/6 other persons with five/six gunny bags into the forward hold of the Crane Vessel. He also drew my attention that they had stated that when they had asked him about the contents of the said gunny bags 2/3 unknown persons compelled them to keep shut at the point of revolver and other dangerous weapons and Shri Sadhan Chandra Mallick co-operated with those unknown persons and stated that if any person comes to know about the goods then Shri Roy and Shri Dutta would be killed. This statement was forwarded by the Deputy Chief Mechanical Engineer, Ship Repair Complex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very statement was relied on by him corroborating the statements of S/Shri Dutta and Roy. Moreover, it is also contended that the show cause notice was not vague. In this connection, he drew my attention at Page 9 of the Para 2 of the show cause notice. Relying on the above averment I have found therein as advanced by Shri Biswas that the show cause notice is specific. With respect to the non-mention of sub-section of Section 111(a) or (b) Shri Biswas based on the decision of the Supreme Court in the case of J.K. Steel v. Union of India reported in 1978 (2) E.L.T. J355. He also cited the judgment in the case of R.J. Patel v. Collector of Central Excise reported in 1988 (14) ECR 627. 5. Shri D.K. Mukhopadhyay contended that the statements ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dilip Kumar Dutta would be killed. It is no doubt true that the confession of a co-accused can be taken into consideration. These are the principles laid down by the Tribunal in Sukar Narain s case which was relied on by the learned SDR. But in that case besides statement of the co-accused there were accounts maintained with respect to the smuggling and the same was seized. So also independent crew members corroborated the version of the co-accused. There was independent corroboration put forth in that case. But in this present case the statement of one co-accused is corroborated by the other co-accused and there is no independent corroboration. The mere facts that these two co-accused again reiterated their first statements given before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statements of these two persons. In fact, the order does not mention about these statements and they were not discussed in the Adjudication Order. Even in the show cause notice it was mentioned as follows: Shri Dilip Kumar Dutta was found missing on the night of 8-3-1986 between 11 p.m. to 2 a.m. If they were found missing their statements that they saw the appellant and five or six others going down are open to doubt and the same cannot be implicity relied upon against the appellant without any further corroboration from any independent sources. In such circumstances, I am of opinion that the appellant is entitled for the benefit of doubt. In view of these reasonings it is not necessary for me to discuss as to whether the non-me ..... X X X X Extracts X X X X X X X X Extracts X X X X
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