TaxTMI 
TaxTMI 
2015 (3) TMI 197
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....tition Act, 2002 (hereinafter referred to as 'Act, 2002'). 3. He further submits that the order imposing penalty is in violation of principles of natural justice as even though the said order entirely relies upon the Director General's report and evidence in Case No.29/2010 as well as the findings rendered by CCI in said case No.29/2010, yet the report in case no. 29/2010 was not furnished to the petitioner while the ground for levy of penalty is that petitioner indulged in cartelization along with other cement manufacturing companies who were parties only to Case No. 29/2010 and not RTP 52/2006 which pertains only to the petitioner. In support of his submission, he relies upon a judgment of Supreme Court in R.B. Shreeram Durga Prasad & Fatehchand Nursing Das v. Settlement Commission (IT & WT) [1989] 1 SCC 628 wherein it has been held as under:- "7. We are definitely of the opinion that on the relevant date when the order was passed, that is to say, 24-8-1977 the order was a nullity because it was in violation of principles of natural justice. See in this connection, the principles enunciated by this Court in State of Orissa v. Dr. Binapani Dei [AIR 1967 SC 1269 :....
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....here was no clear opportunity given to the appellant to make submissions on the Commissioner's objections in the sense to demonstrate that the Commissioner was not justified in making the objections and secondly, the Commission should not accept or accede to the objections in the facts and circumstances of the present case. We are of the opinion that in view of the facts and circumstances of the case and in the context in which these objections had been made, it is necessary as a concomitant of the fulfilment of natural justice that the appellant should be heard on the objections made by the Commissioner. It is true that for the relevant orders for the years for which the Commissioner had objected the concealment had been upheld in the appeal before the appropriate authorities. But it may be that in spite of this concealment it may be possible for the appellant to demonstrate or to submit that in disclosure of concealed income for a spread over period settlement of the entire period should be allowed and not bifurcated in the manner sought to be suggested for the Commissioner's objections. This objection the appellant should have opportunity to make. In exercise of our powe....
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....llate Tribunal under the provisions of the said Act. No such restriction, however, finds place in Section 53T of the Act. 7. I find some support for the view being taken by me from the decision of the Supreme Court in Nathoo Lal v. Durga Prasad AIR 1954 SC 355. In the aforesaid case, a decree came to be passed by the High Court of former Jaipur State on 3.3.1949, concerning a suit for possession of property. The defendant applied for review of the said judgement. In the meanwhile the Jaipur High Court became defunct and review was heard by the Rajasthan High Court as successor to the Jaipur High Court and was partially allowed on 5.4.1950. An appeal against the said judgement and decree came to be preferred by leave of the Rajasthan High Court under Article 133(1)(c) of the Constitution. When the appeal came up for hearing the learned counsel for the respondents raised a preliminary objection as to the maintainability of the appeal. He contended that according to the Code of Civil Procedure of the Jaipur State, the decision of the Jaipur High Court had become final as no appeal lay from it and, therefore, the appeal before the Supreme Court was incompetent. The contention, howev....
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....on and there is no reason why the petitioners should not avail the said remedy." 7. He further states that CCI has jurisdiction by virtue of Section 66(6) of the Act, 2002 to decide the issues raised in the present petition and consequently, there has been no jurisdictional error. Section 66(6) of the Act, 2002 reads as under:- "66(6). All investigations or proceedings other than those relating to unfair trade practices, pending before the Director General of Investigation and Registration on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India may conduct or order for conduct of such investigation or proceedings in the manner as it deems fit." 8. In support of his submission, he relies upon a judgment of this Court in Interglobe Aviation Limited Vs. The Secretary Competition Commission of India and Ors., (2010) 173 DLT 581 wherein it has been held as under:- "12. Under the MRTP Act, the MRTP Commission combined in itself both the inquisitorial as well as adversarial/adjudicatory functions. In its inquisitorial role, the MRTP Commission was empowered to refer....
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.... jurisdiction and contrary to the principles of natural justice. In support of their submission, they rely upon the following judgments:- A. In State of Uttar Pradesh v. Mohammed Nooh, 1958 SCR 595, the Supreme Court has held as under: "On the authorities referred to above it appears to us that there may conceivably be cases - and the instant case is in point -where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal ....
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....of the impugned order is reproduced hereinbelow:- "6. The learned counsel canvassed before us that it was an old case of MRTP Commission, which came to be transferred under section 66(6) of the Competition Act before the CCI. He, therefore, urged that the inquiry before the CCI pertained not to the period after 20th of May, 2009, when section 3 and 4 came on the anvil, but to the period prior to it and as such the inquiry suffered jurisdictional error. However, during the debate, the learned counsel contended that it could not be said that the CCI did not have the jurisdiction, particularly in view of the clear language of section 66(6). Therefore, there would be no jurisdictional question to be decided. The learned counsel, however, contended that the CCI on the basis of that inquiry could not have found the Appellant guilty of the breach of section 3 because the earlier inquiry pertained to the period prior to 20th May, 2009, when sections 3 and 4 came on the anvil. The contention is clearly incorrect, for the simple reason, that in its meeting on 24.06.2010, the CCI had directed the DG to do a thorough inquiry into the matter, which was not restricted only to the period prior....
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....e. The learned counsel on behalf of CCI strenuously urged that there was absolutely no prejudice caused to the Appellant, as the examination of the two reports would show that they were practically identical. He also urged that it was incorrect to say that the CCI relied on the report in Case No. 29 of 2010, though the CCI might have referred to that report at some places. He pointed out that there was absolutely no prejudice caused, whatsoever, to the Appellant due to the alleged non supply of the report and as such there was no question of setting aside the order of CCI in this Appeal. 11. The Appellant has a prima-facie case because of which we have ordered the final arguments in this case. However, when we examine the matter on merits, we do not find anything different than the other cement manufacturers, who have been dealt in Case No. 29 of 2010. We shall certainly examine the question of non-supply of DG's report in Case No. 29 of 2010 to the Appellant at the final hearing, however, at this stage, we are of the firm opinion that it will not be proper to allow the Appeal by setting aside the judgment on account of the alleged denial of natural justice to the Appellant.....