TaxTMI 
TaxTMI 
2018 (11) TMI 851
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....s in the State of Gujarat. Such practice has been found to be resulting in limiting and controlling the supply of drugs in the market and hence, held to be an anti-competitive practice, being in contravention of the provisions of Section 3(3)(b) read with Section 3(1) of the Act. Further, the erring pharmaceutical companies, namely Glenmark Pharmaceutical Ltd. and its C&F Agent M/s B.M. Thakkar & Co., Divine Savior Pvt. Ltd. and Hetero Healthcare Ltd., have also been found to be liable for entering into an anti-competitive arrangement/ understanding/ coordination with the erring associations in violation of the prohibitions contained under Section 3(1) of the Act. 3. Accordingly, monetary penalties have been imposed on the erring associations and pharmaceutical companies named supra at the rate of 10% and 1% respectively, of their respective average incomes. Besides, the Commission has also found certain individuals of these associations and pharmaceutical companies to be liable under Section 48(1) and/or 48(2) of the Act for their active involvement and/or by virtue of holding key positions in their respective associations/companies. Accordingly, monetary penalties have been le....
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....ompetitive conduct by Glenmark took place. The contravention against Glenmark is found to be based on the documents placed on record which included data for appointment of new stockist at Ahmedabad prepared by Distribution Department of the Company during 2104-15, showing specified format information regarding requirement of NOC. Further, the 'Checklist For Stockist Appointment' also contained marginal notings establishing the NOC practice being followed by Glenmark. Thus, based on the position held by him, presumption of his liability for the contravention by his company arises. Despite opportunity, Shri Glenn M. Saldanha could not establish as to how he was not aware or responsible for such practice. As the Managing Director he ought to have devised measures to ensure that the company, in which he holds a position of responsibility, is not facilitating the practice mandated by the Federation/Shri Jashvant Patel. As explained earlier, Section 48(1) of the Act is triggered when the party in contravention is a company (including a firm or an association of individuals) and a person/individual officer/office bearer is found to be in-charge of, and responsible for the conduct ....
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....he email dated 24th April, 2015, recovered from the email dump of the President, SCDA, establishes that Shri Rakesh Shah sought permission of SCDA in relation to appointment of a new stockist by Divine Savior. This evidence shows his active involvement in addition to the key position held by him, making him liable under Section 48(1) as well as Section 48(2) of the Act. 8. Further, while responding to the SCN, Shri Glenn M. Saldanha has submitted that in response to the investigation report, an application dated 05.01.2018 was filed by him for deletion of his name from the impugned proceedings wherein he had also requested for a separate hearing on the said application, if the Commission finds Glenmark Pharmaceuticals Ltd. in contravention of the provisions of the Act. However, the Main Order was passed by the Commission without giving an opportunity of hearing to him. 9. In this regard, the Commission notes that the learned Senior Counsel for Shri Glenn M. Saldanha, Shri Amit Sibal had argued at length on the said application and as such, there does not arise any need for another separate hearing on the same application. It was strenuously argued that Shri Glenn M. Saldanha ....
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....,004 11. It is noted that while imposing penalty on the pharmaceutical companies vide the Main Order, the Commission had considered certain mitigating circumstances that worked in favour of Hetero Healthcare Pvt. Ltd. and hence its penalty amount was reduced by 40%. It was observed that Hetero Healthcare Pvt. Ltd. had come forward before the Commission and admitted to its guilt of breaching the relevant provisions of the Act. Further, the facts revealed that it had never refused to sell/supply its drugs to the Informant even during the alleged period. Also, during the course of the proceedings, Hetero Healthcare Pvt. Ltd. had assured the Commission that it would give clear instructions to all its field staff in the matter to prevent any such incident in future. These factors were duly considered by the Commission while reducing Hetero Healthcare's penalty by 40%. 12. The Commission is of the view that benefit of these mitigating factors also need to be extended qua its officials, namely Shri Srinivasa Reddy and Shri Bharat Pandya, and accordingly, they also deserve a remission in their respective penalties by 40%. Accordingly, the penalty payable by Shri Srinivasa Reddy a....