JUDGMENT :

T.S.Sivagnanam, J.

These appeals have been filed challenging two separate orders passed in W.P.Nos.5499 and 5495 of 2013, both dated 09.11.2020.

2. The appellant/writ petitioner challenged the orders passed by the Commissioner of Customs (Airport and Air cargo), Chennai dated 30.11.2012, in Order-in-Original Nos.639 and 640 of 2012.

3. The writ petitions were dismissed by the learned Single Bench on the ground that there is no acceptable explanation given by the appellant for not having resorted to the alternate remedy of filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal. The learned Writ Court placed reliance on the decision of the Hon'ble Supreme Court in Assistant Collector of Central Excise vs. Dunlop India Limited [(1985) 1 SCC 260 (SC)].

4. Since the facts are identical, it would suffice to refer to the Orderin- Original No.640 of 2012, which is subject matter of W.A.No.360 of 2021.

5. Based on the intelligence gathered by the Directorate of Revenue Intelligence (DRI), Chennai Zonal Unit to the effect that certain persons/importers were importing branded glass chatons under the guise of artificial stones/imitation stones, etc., by mis-declaring the value of the consignments and misusing IECs through the Air Cargo complex at Chennai as well as through the Seaport at Chennai, investigation was conducted by the DRI and show cause notice dated 26.03.2011, was issued to several persons and the appellant before us, Mr.Stalin Joseph, was one of the noticees. The proposal in the show cause notice as against the appellant and three others, viz., M/s.Abi Sathiya Enterprises, Mr.Zahir Hussain and Mr.T.Suresh is as hereunder:-

“(a) The description of the goods declared as “Decoration Artificial Stones (Mix Model and sizes in various colors)” imported under Bill of Entry No.652589 dated 08.10.2010 should not be rejected and held as “Glass Chatons”;

(b) The value declared @ $ 7.5/kg in respect of the said item referred to in (a) above, imported under Bill of Entry No.652589 dated 08.10.2010 should not be rejected in terms of Rule 12 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 read with Section 14(1) of the Customs Act, 1962;

(c) The value should not be re-determined as $ 97 CIF/kg in respect of the said item referred to in (a) above, imported under Bill of Entry No.652589 dated 08.10.2010 under Rule 9 of the Customs Valuation (Determination of Price of Imported Goods) Rules, 2007 read with Section 14(1) of the Customs Act, 1962.

(d) The goods totally valued at Rs.2,02,71,041.78/- (A.V.) imported vide Bill of Entry No.652589 dated 08.10.2010 and seized, should not be confiscated under Section 111(d) and 111(m) of the Customs Act, 1962;

(e) Penalty should not be imposed on them under Section 112(a) of the Customs Act, 1962; and

(f) Penalty should not be imposed on them under Section 114AA of the Customs Act, 1962.”

6. The appellant was issued with another show cause notice dated June, 2011 in which, the appellant and two others viz., Mr.T.Suresh and Mr.S.Antony were called upon to show cause as to why penalty should not be imposed on them under Section 112(a) and 114AA of the Customs Act, 1962 (hereinafter referred to as “the Act”).

7. To be noted that in the show cause notice dated 07.06.2011, which culminated in Order-in-Original No.639 of 2012, which is subject matter of W.A.No.363 of 2021, the proposal against the appellant and two others viz., Mr.T.Suresh and Mr.S.Antony was to show cause as to why penalty should not be imposed on them under Section 112(a)/114AA of the Act.

8. The appellant filed his reply dated 10.02.2011, inter alia denying the allegations made in the show cause notice and that the allegations are only reproduction of the statements recorded by the officers. The appellant further stated that one Mr.B.Vaithiyanathan/Mr.Mohammed Saleem, is the Proprietor, who had imported the goods through Chennai Airport and that the appellant has not received any mone