Appeal dismissed as company's five-year receipt of cartel emails without protest proves participation in bid rigging under Competition Act Sections 3(3)(a), 3(3)(c), 3(3)(d)

The NCLAT dismissed an appeal challenging cartelisation findings under Competition Act Sections 3(3)(a), 3(3)(c), and 3(3)(d) read with Section 3(1). The appellant argued it was wrongly included in the cartel without proper consideration by the Commission. The NCLAT held that strict evidence rules don't apply in competition proceedings. The appellant received cartel emails for five years without protest or requesting cessation, indicating meeting of minds. Evidence showed all parties had access to a shared email account. The tribunal found that mere information exchange suffices for bid rigging cases, and continuous receipt of emails without objection demonstrated participation in anti-competitive conduct.

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Issues:
The appeal filed u/s 53B of the Competition Act, 2002 against an order dated 10.07.2020 in Reference Case No.03/2016 involving contravention of Section 3(3)(a), 3(3)(c), and 3(3)(d) read with Section 3(1) of the Competition Act.

Issue 1: Allegations against Appellant No.1
The learned counsel argued that the Commission erroneously found Appellant No.1 guilty of contravention of the Competition Act without proper evidence or admission. It was contended that Appellant No.1 was wrongly clubbed with the cartel members without any valid basis, and fundamental principles of competition law were not followed. The submissions on behalf of Appellant No.1 were not considered in the impugned order, despite disproving the allegations against it.

Issue 2: Defense of Appellant No.1
The main contention was that Appellant No.1 only submitted bids for tenders without discussing them with other cartel members. The admissions made by an employee of the appellant were argued to be unauthorized and not binding on the company. Witness statements from other individuals also supported the defense that Appellant No.1 was not part of the cartel.

Issue 3: Evidence of Cartel Activities
Confessions of cartel members, including creating email accounts for communication, sharing bid prices, allocating quantities, and coordinating on tender bids, were presented as evidence. The statements of various witnesses implicated the appellant company in cartel activities, despite attempts to disown employee statements. Emails exchanged among cartel members further demonstrated the coordination and sharing of sensitive information.

Issue 4: Membership in the Cartel
The argument that mere receipt of information without active participation does not establish cartel membership was refuted. The evidence of cartelization, including consistent statements and email exchanges among members, indicated the appellant's involvement. The strict rules of evidence were deemed not applicable in competition proceedings, and even attempts to rig bids were considered sufficient to attract legal provisions.

Issue 5: Dismissal of Appeal
In light of the evidence presented, including the continuous receipt of emails without objection and access to shared email accounts, the appeal and all pending applications were dismissed. The exchange of information among cartel members, even without active participation from the appellant, was deemed sufficient to establish involvement in anti-competitive conduct.

This summary provides a detailed breakdown of the judgment, highlighting the key arguments, evidence, and conclusions related to the issues raised in the appeal.

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