TMI Blog2015 (8) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... 8711 (W) of 2014 - - - Dated:- 25-8-2014 - Harish Tandon, J. Shri Sohail Haque and A.K. Upadhaya, Advocates for the Petitioner. Shri R.N. Das, Sr. Advocate, K.K. Maity, R. Bharadwaj and Subir Kumar Saha, Advocates for the Respondent. JUDGMENT The point involved in the writ petition assumes significance on the interpretation of the various provisions contained in Chapter V of the Central Excise Act pertaining to the Settlement Commission. 2. The incorporation of the said Chapter was perceived for rampant colossal evasion of duties and/or tax effecting the health and wealth of the nation. The Wanchoo Committee was appointed to opine and make recommendations against those evils. In acceptance of the partial recommendations, the provision of Settlement Commission was introduced and Chapter 19A was brought in the Income Tax Act, 1961 containing the provisions for Settlement Commission. Subsequently the Chapter V was inserted in Central Excise Act by Section 110 of the Finance Act, 1998, which was suitably amended from time to time. With an intention to make it more workable and for speedy recovery of the revenue rather than from the cumbersome provision of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deciphered from the facts recorded in the impugned order. It is strenuously argued that though the power to grant the immunity is provided in the said Act but it is within the discretion of the Settlement Commission either to grant wholly or in part immunity against the full penalty. It is submitted that the exception may is always interpreted as directory and not mandatory as held in case of Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee Ors; reported in AIR 1976 S.C. 263. By relying the Division Bench judgment of the Bombay High Court in case of Indorama Synthetics (India) Ltd. v. Union of India reported in 2013 (290) E.L.T. 208, an argument is advanced that if the admission relating to the duty liability is evident from the application made before the Settlement Commission which lead to the imposition of penalty in part, the same does not violate the substantive provision. 6. Having considered the respective submissions, the dispute hinges as to whether the Settlement Commission is within its powers to impose penalty on each of the Directors in addition to the imposition of penalty upon the Company. In the event, the answer is positive as to whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... containing a full and true disclosure of his duty liability which has not been disclosed before the Central Excise Officer having jurisdiction, the manner in which such liability has been derived, the additional amount of excise duty accepted to be payable by him and such other particulars as may be prescribed including the particulars of such excisable goods in respect of which he admits short levy on account of misclassification, under valuation, inapplicability of exemption notification or Cenvat credit and any such application shall be disposed of in the manner hereinafter provided: Provided that no such application shall be made unless, (a) the applicant has filed returns showing production, clearance and Central Excise Duty paid in the prescribed manner; (b) a show cause notice for recovery of duty issued by the Central Excise Officer has been received by the applicant; (c) the additional amount of duty accepted by the applicant in his application exceeds three lakh rupees; and (d) the applicant has paid the additional amount of Excise duty accepted by him along with interest due under Section 11AB: 8. One of the essential ingredients to maintain the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition can be fortified from a judgment of the Supreme Court in case of Govindlal (supra) wherein it is held : 12. Plainly, shall must normally be construed to mean shall and not may , for the distinction between the two is fundamental. Granting the application of mind, there is little or no chance that one who intends to leave a leeway will use the language of command in the performance of an act. But since, even lesser directions are occasionally clothed in words of authority, it becomes necessary to delve deeper and ascertain the true meaning lying behind mere words. 13. Crawford on Statutory Construction (Edn. 1940, Article 261, p. 516) sets out the following passage from an American case approvingly : The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other. Thus, the governing factor is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is mandatory or directory. No universal rule can be laid down on this matter. In each case one must look to the subject- matter and consider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. Recently in the Presidential Election case, the learned Chief Justice speaking on behalf of a seven-Judge Bench observed : In determining the question whether a provision is mandatory or directory, the subject-matter, the import of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory., It is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law-maker expressed in the law itself, taken as a whole. 10. Keeping in mind, the object and the intendment behind incorporation of Chapter V of the said Act, the expression may appear in Section 32K is discretionary and not mandatory. Though the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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