xvii. Further, the Commission should consider the mitigating circumstances in favour of OP-3 while imposing penalty. In Excel Crop Care v . Competition Commission of India ( supra ), the Hon’ble Supreme Court had categorically held that: “After such initial determination of relevant turnover, the Commission may consider appropriate percentage, based on facts and circumstances of the case and by taking into consideration various factors such as the nature, gravity, extent of the contravention, role played by the infringer, the duration of participation, the intensity of participation, loss or damage suffered as a result of such contravention, market circumstances in which the contravention took place, nature of the product, market share of the entity, barriers to entry in the market, nature of involvement of the company, bona fide of the company, profit derived from the contravention etc. ” Further, Hon’ble COMPAT in case of MDD Medical Systems India Private Limited &Ors. v. Competition Commission of India & Ors. (Appeal No. 93/2012) and M/s. Gulf Oil Corporation Ltd & Ors. v. Competition Commission of India (Appeal No. 82 of 2012) had also held that: “CCI must not only give the reasons in support of the quantum of penalty, but also consider the mitigating circumstances and then only come to the final conclusion regarding the quantum of punishment.”
