TaxTMI 
TaxTMI 
TaxTMI 
2013 (2) TMI 582
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....private players with the interference of Government being limited to coordination, regulation and apportionment of claims amongst the railways companies. Subsequently the Railways Act, 1989 was enacted, which empowered the Central Government to fix rates for carriage and passengers and goods by the Railways, to classify or reclassify any commodity for the purpose of determining the rates to be charged for the carriage of such commodity etc. OP No. 2 prescribes the freight circulars for any commodity by obtaining the sanction of the Central Government, in terms of the Indian Railways Act, 1890. Empowered so under the Indian Railways Act, OP No. 2 issued various rate circulars or rate instructions ('rate instructions') adjusting the freight rates during April 2003 and 2012. OP No. 2 also reclassified the iron ore based upon its end use, thereby imposing different freights on iron ore based on its end use. The iron ore meant for domestic consumption for manufacture of iron and steel was charged at a lower rate and iron ore transported for other domestic purpose or for export purpose attracted a higher freight. Aggrieved by this classification, the informant approached this Commission ....
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....r the carriage of such commodities; and (b) increase or reduce the class rates and other charges. 7. The Commission is of the view that the OP No.2 was exercising the aforesaid statutory functions when it reclassified and revised the rates/freight of commodities transported by railways in India. The exercise of such functions by itself, in the absence of any other cogent evidence establishing that such conduct is in violation of the provisions of the Act, does not justify a direction by the Commission to recommend the DG to investigate and analyze the conduct of the Opposite Parties. 8. By above statutory provision, the legislature has authorized the Central Government to classify and revise rates/freight with respect to carriage of passenger and goods. The impugned rate instructions/circulars issued by OP No.2 were uniformly applicable for all the entities who wanted to avail the services of Indian railways for transporting their goods. A function of an enterprise may be anti-competitive in nature if such function is in violation of any of the provisions of the Act. However, in the absence of any prima facie case of violations of the provisions of the Act, being made out ....
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....sed on end use was affecting the competition in the sector in adverse manner and amounted to a contravention of the Competition Act and aggrieved by this classification, the informant has approached this Commission alleging abuse of dominant position by the opposite parties under section 4 of the Act. 4. It is the majority's view that the Informant has failed to define the relevant market and to prove that the OPs are holding dominant position in that market. In this regard my view is that the onus is not on the Informant to prove that the OPs are holding dominant position. It is the job of the Commission to find out whether the OPs are holding dominant position in the relevant market. Informant is merely an information provider. He is not supposed to be expert on the Competition Law. His job is to bring it to the notice of the Commission that some anti competitive act is being committed and then it is for the Commission to find out whether that act is prima facie anti competitive. 5. It is also the majority's view that without going into the determination of relevant market and assessment of dominance of the Opposite Parties, no prima facie case has been made out by the Informan....
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.... cannot abuse their dominance. 7. Another argument which is generally raised is that with reference to the last part of section 2(h) which allows exemption to any activity relating to sovereign function of the Government including all activities carried on by Department of Central Government dealing with atomic energy, currency, defence and space and since this is an exclusionary item the government department which carries out sovereign functions has to be exempted from the definition of enterprise. The fact is that the first portion of this section talks about any activity whereas the last portion of the section talks of any activity relating to sovereign functions. As this is an exclusionary item in the statute, the interpretation has to be strict and narrow. It was therefore necessary on the part of the government departments to establish that it was carrying on of sovereign functions and this has not been done. Merely because the MOR works under the statute of Parliament it does not become a sovereign power. If MOR was carrying out sovereign functions then it would have been included along with atomic energy, currency, defence etc. There is no doubt that MOR is carrying out c....
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....SCC 603 has approved such a role for an enterprise. One important issue may be raised as to whether a policy formulation amounts to a discharge of sovereign functions. 11. The question is whether fixing a rate or issuing a rate circular amounts to a delegated legislation and whether the CCI could go into question of validity of such a circular which was stated to be in the nature of delegated legislation. In the case of Arshiya, it was stated by the Railway that price fixation was essentially a legislative function and that Courts did not have power to fix the price. It was further argued that a court was neither concerned with policy nor with rates. It was also stated that a court could not evaluate and consider the prices would be injurious some manufacturers or producers. 12. The proposition given by the Railways is partly correct. Fixation of price is an administrative function and not a legislative function. It has been held by various courts that fixing of prices required expertise which a court does not have. Courts also do not interfere in policy decisions and with rates because the policy as well as the rates are framed and fixed by an expert body and a court is normally....