1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1901 OF 2008 Union of India. ... Petitioner. V/s. R.Shantilal Company and others. ... Respondents. Pradeep S. Jetly with J.B.Mishra for the petitioner. Ashok Singh i/b. R.N.Gaonkar for respondent No.1. CORAM : V.C.DAGA AND S.J.KATHAWALLA, JJ. DATED : 23rd June 2010. P.C. : Heard learned counsel for the petitioner and learned counsel for the respondents. Perused petition. 2. This petition, filed under Article 226 of the Constitution of India, is directed against the order dated 7th June, 2006 passed by the Settlement Commission, Additional Bench, Customs and Central Excise, Mumbai. The challenge is restricted to the remission of interest in excess of 10% per annum on the differential duty from the date it was due till it was paid and the total waiver of penalty and prosecution. 2 3. Mr.Jetly, learned counsel for the petitioner- Revenue submits that no case was made out by the respondent for claiming immunity from payment of interest in excess of 10% per annum and the total waiver of penalty. He, thus, submits that the impugned order is not in accordance with law and liable to be quashed and set aside. 4. In reply, learned counsel for the respondents submits that the view taken by the Settlement Commission is a reasonable and possible view in the facts available on record and that this Court not being a Court of appeal cannot substitute its views with that of the Settlement Commission. He further submits that the petitioner- Revenue has not shown any perversity in the impugned order. He relied upon the judgment of the Punjab and Haryana High Court in the case of Commr. Of C.Ex., Delhi-III, Gurgaon v. Carrier Aircon Ltd., 2008 (221) ELT 492 (P & H); wherein the High Court relying upon the judgment of the Supreme Court in the case of Jyotendrasinhji v. S.I.Tripathi, 1993 (201) ITR 611 (SC), which followed R.B.Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (I.T. And W.T.), (1989) 176 ITR 169, observed as under: 9. The order passed by the Settlement Commission can no doubt be challenged before this Court or before Hon’ble Supreme Court under Article 32 of the Constitution yet the enquiry envisaged is limited as to whether the order is contrary to any provisions of the Act or suffers 3 from bias, fraud or malice. In support of the afore-mentioned conclusion, we place reliance on the judgment in S.I.Tripathi case (supra). The following observations determines the area of judicial scrutiny by this Court or by Hon’ble the Supreme Court which reads as under: “.....Be that as it may, the fact remains that it is open to the Commission to accept an amount of tax by way of settlement and to prescribe the manner in which the said amount shall be paid. It may condone the defaults and lapses on the part of the assessee and may waive interest, penalties or prosecution, where it thinks appropriate. Indeed, it would be difficult to predicate th reasons and considerations which induce the Commission to make a particular order, unless the Commission itself chooses to give reasons for its order. Even if it gives reasons in a given case, the scope of enquiry in the appeal remains the same as indicated above, viz. whether it is contrary to any of the provisions of the Act. In this context, it is relevant to note that the principle of natural justice (audi alteram partem) has been incorporated in Section 245D itself. The sole overall limitation upon the Commission thus appears to be that it should act in accordance with the provisions of the Act. The scope of enquiry whether by the High Court under Article 226 or by this Court under Article 136 is also the same – whether the order of the Commission is contrary to any of th provisions of the Act and if so, apart from ground of bias, fraud and malice which, of course, constitute a separate and independent category, has it prejudiced the petitioner/appellant. 4 Reference in this behalf may be had to the decision of this Court in R.B.Shreeram Durga Prasad and Fatechand Nursing Das v. Settlement Commission (I.T. And W.T.) [1989] 176 ITR 169, which too was an appeal against the orders of the Settlement Commission. Sabyasachi Mukherji J., speaking for the Bench comprising himself and S.R.Pandian J., observed that in such a case, this Court is “concerned with the legality of the procedure followed and not with the validity of the order”. The learned Judge added “judicial review is concerned not with the decision but with the decision making process.”.....” (Emphasis supplied) 5. Having heard both parties and having seen the impugned judgment, no fault can be found with the view taken by the Settlement Commission. The petitioner neither could demonstrate any procedural illegality committed by the Commission nor could point out that there was any bias or violation of procedure. In the circumstances, for the reasons recorded in the aforesaid judgment, no case is made out to interfere with the impugned order. 6. In the result, petition is dismissed in limine with no order as to costs. (S.J.KATHAWALLA, J.) (V.C.DAGA J.)