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TMI Blog2020 (3) TMI 842X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Ishan Bhatt, learned counsel appearing on behalf of the appellant submits that these cases were made out on the basis of common investigation conducted by DGCEI. All the statements and, particularly, a 'bill conditioning ledger' which was recovered and on that basis, case of clandestine removal of goods by M/s Shah Foils ltd. was made and on the same evidence, the present case was also made. This Tribunal in the main case of clandestine removal, dropped the proceeding by judgment reported at Shah Foils Ltd. vs CCE 2019 (1) TMI 1162- CESTAT, Ahmedabad. This Tribunal's judgment was upheld by Hon'ble High Court of Gujarat reported at CCE vs. Shah Foils Ltd. 2020 (1) TMI 802 Gujarat High Court. He further submits that under the same invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. Ex. & Cus., Nashik 2017 (348) E.L.T. 115 (tri- Mumbai) 2. Naresh Agarwal vs CCE & S.T.- Vadodara-ii vide Tribunal's order no. A/10567/2020 dated 27/02/2020 3. Vee Kay Enterprises vs Commissioner of Central Excise 2011 (266) E.L.T. 436 (P&H) 4. MTC Business Pvt. Ltd. vs Commissioner of Customs, Mumbai 2015 (330) E.L.T. 570 (Tri- Mumbai) 5. Madhumilan Syntex Ltd vs UOI 2007 (210) E.L.T. 484 (S.C) 6. M.N. Dastur and Co. Ltd. vs UOI 2006 (4) S.T.R 3 (Cal.) 4. I have heard both sides and perused the records. I find that since, undisputedly, all the evidences relied upon in the present case were already considered by this Tribunal in the case of Shah Foils Ltd. and Sun Textiles Engineering (supra). Therefore, there is no need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be raised. That Shri Kartik Shah in his statement dt. 28.01.2014 and 29.01.2014 had clearly stated that the diversion of the goods, if any, may have occurred due to diversion of goods by broker of M/s SFPL and that all clearances made by them were under invoices. He has pointed out entries out of "Bill condition" ledger were of invoices in respect of which lorry receipts and Form no. 402 submitted to Gujarat Vat Department for movement of said goods is also available. He submits that the goods were always removed on invoice and the diversion took place later. We find that there is no physical/ material evidence of Appellant having issued invoice without accompanying goods. Only on the basis of pen drive seized from place outside the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind that the cenvat credit was denied to the appellant M/s Sun Textile Engineers and consequential penalty was imposed on M/s Shah Foils Ltd. by the learned Commissioner (Appeals) relying on various statements from which the Commissioner (Appeals) contended that M/s Shah Foils Ltd. only issued the invoices but the goods were not supplied. From the order of the original authority, it is observed that the adjudicating authority considered the submission of almost all the witnesses and came to the conclusion that in no any statements, there is a direct charge that M/s Sun Textile Engineer were not supplied the goods. It was held that statements do not have any probity value so far as the goods is related to M/s Sun Textile Engineers is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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