TMI Blog1996 (5) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that redemption fine should have been given to redeem the vessel in question in view of the fact that this vessel was hypothecated to the Bank and the Bank is entitled to recover the balance amount due from the appellant K.G. Augustine. In that view of the matter the Bank has filed its appeal. 2. The learned Advocate Shri Gangadharan appearing for the appellant Shri K.G. Augustine, contended before us that the only evidence relied on by the adjudicating authority is the statement of M.L. Kunjumon as well as M.L. Suresh. He has stated that these statements cannot be relied upon in view of the fact that they have mentioned the presence of fish in this vessel Simla and nothing is mentioned in the order at to what happened to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 of the order has exonerated Augustine stating that there is no evidence of his direct involvement. Therefore the redemption should have been given in this case. 4. The learned SDR Shri Victor Thyagaraj on the other hand drew our attention to the statements of M.L. Kunjumon as well as M.L. Suresh. He also pointed out that Babu and Gijo who are the son and son-in-law of the appellant were in the vessel and they absconded without appearing before the competent authorities. Therefore he stated that the statements of M.L. Kunjumon as well as M.L. Suresh are corroborated by these circumstances that these two persons who were in the vessel absconded and did not appear before the authorities. He also pointed out that during the relevant time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Advocate is that these persons are co-accused and their statement is not enough to prove that the silver was unloaded from the ship Simla and the burden of proof is with the Department. We are not able to accept to this contention in view of the fact that these are statements taken by the Department under Section 108 of the Customs Act, 1962. In the decision reported in 1996 (83) E.L.T. 258 (SC) = 1996 (62) ECR 366, the Hon ble Supreme Court has stated that any such statement given by the co-accused under Section 108 of the Indian Evidence Act is an evidence and on the sole evidence of the co-accused the Hon ble Supreme Court in the abovestated case had held that the offence against the appellant was proved. Therefore relying o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he circumstances mentioned above. 7. However in the finding that the adjudicating authority himself has given the finding that the appellant is not the person who is connected with the smuggling activity and in the facts and circumstances of the case we are of the view that the redemption should have been given in this case to the appellant to redeem the vessel in question. It is further to be noted that this vessel is hypothecated to the appellant Syndicate Bank and the recovery proceedings were pending for the recovery of the balance amount of hypothecation. Taking into consideration all these aspects we are of the view that it is a fit case wherein the adjudicating authority should have allowed the appellant to redeem the vessel in que ..... X X X X Extracts X X X X X X X X Extracts X X X X
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