TMI Blog2021 (12) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... referring the said goods under restricted category. The revenue has relied heavily on the content or the information available on website of shipping lines, which may be erroneous and needs investigation. However, the documents like proforma invoice, bill of lading and the documents like certificates of origin etc., fact of payment before shipment indicates that the submissions of the appellant cannot be brushed aside. It s not proved that such documents are fabricated or manipulated. It is very difficult to deny the authenticity of the certificates issued by a sovereign Government in the absence of evidence. No such allegation of fabrication of such documents is made. Learned authorised representative for the revenue avers that the investigation is still on. One more evidence that the revenue relies upon is the initial statement of the importer, wherein he is alleged to have stated that he has fabricated documents on the advice of the Custom Broker/appellant. The statement has been retracted. A statement which is retracted or otherwise, and more so not being substantiated by documentary or other proof, cannot be appreciated as evidence - Revenue has not brought out any evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the DGFT notification No. 03/2015-2020 dated 26.04.2021 came into effect. Thus M/s Kinshuk Overeas, Suraj Industries compound, Dethli Road, Sidhpur- 384151, Gujarat appeared to have violated the provisions of DGFT notification No. 03/2015-2020 dated 26.04.2021. 5. They were in full knowledge that, the real time tracking status of the containers cannot be changed, therefore they tried to manage or alter the documents on which the dates may be shown as per their convenience, and which can be used for clearance of cargo. Even M/s Kinshuk Overseas Pvt. Ltd., importer was advised for changing the date of Phytosaniatry Certificate and Fumigation certificate which is evident from the e mail dated 02.06.2021, where they have written 3. Phyto -CHANGE THE DATES ACCORDING TO BL , and 4. Fumigation-CHANGE THE DATES ACCORDING TO BL They have also admitted vide e mail dated 10.06.2021, that the containers for Bill of Lading were allotted after 26.04.2021, (the date of DGFT notification) containers for subject BL shows that allotment has been done afterwards, which will create a huge problem for us. The note in e mail dated 02.06.2021 Please make sure that BL Container ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertain the correctness of any information which he imparted to his client and not to withhold any information issued by Customs Authorities, in relation to clearance of cargo as per Regulations 10(d), 10(e) and 10(f) of the CBLR 2018 regulations. 12. Thus, the F card Holder (Ajay Agarwal) in this case has committed fraud by manipulating document(s) to show that the shipment was before the date of the Notification dated 26.04.2021 . The Hon ble Apex Court in COMMISSIONER OF CUSTOM Versus CANDID ENTERPRISE has held that fraud nullifies everything. 13. Being aggrieved by the impugned order of Suspension of CB license the appellant is in appeal before this Tribunal. Learned Counsel for the Appellant urges that the court below have erred and have made factual mistakes in the impugned order, and thus have reached and have drawn erroneous conclusion. The following facts on record are undisputed. Undisputed Facts 14. The importer- Kinshuk Overeas received pro-forma invoice dated 19/02/2021 issued by Bayroni DWC LLC, the invoice no. BICO.21.09 showing the importer-Kinshuk Overeas as consignee, shipper-Bayroni Investment International Company Ltd, Sudan, proposed shipment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing plant products, harvested in Sudan. This certificate is also issued by the competent authority of the Government of Sudan. 15. Learned Counsel for the Appellant urges that the Revenue has not found any of the aforementioned vital documents to be forged or fraudulent. Only on the basis of assumptions and presumptions drawn on the basis of some vague data on the website of the shipping line, and statement of representative of shipping line, the Revenue have drawn adverse inference against the appellant. There is all possibility that there is error on the part of staff of the shipping line in filling and uploading the data on their Website. It is a known Canon in computerisation- Garbage In-Garbage Out , that is, if there is error in filling data, the final result will be also erroneous. Thus, the Learned Commissioner have erred in selectively relying on some vague data, on the Website, and ignoring the relevant document of title, that is commercial invoice, bill of lading and the documents issued by the Government Authority of Sudan, namely phytosanitary certificate, fumigation certificate, country of origin, etc. There is no discussion in the impugned order as to why these v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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