AI Drafter 
TaxTMI 
TaxTMI 
2022 (8) TMI 330
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....cipal Corporation, Delhi Jal Board, Airport Authority of India, Power Grid corporation of India Ltd, North Central Railway, Atomic Energy Regulatory Board, Solar Energy Corporation of India, Chief Engineer, Bhopal Zone, Public Health Department, Engineers India Ltd, National Highway Authority of India, Indian roads Congress, Ministry of environment and Forests, Quality Council of India, Central Council for Research in Ayurvedi Sciences ( Justice Rakesh Kumar ) Member ( Judicial ) And ( Dr. Ashok Kumar Mishra ) Member ( Technical ) For the Appellant : Mr Sumit Jain , Advocate For the Respondent : Ms Shama Nargis, Dy. Director, Law, CCI, R1. Mr Krishan Kumar, Mr. Nital Pal, Ms Swikritmala Dubey, Advocates for Respondent No.14. Mr Arun Kumar, Advocate for R19 Ms Prema Priyadarshini, Advocate for Respondent No.27. JUDGEMENT VIRTUAL MODE JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL) The present Appeal under Section 53B of the Competition Act, 2002 (hereinafter referred to as 'the Act') has been preferred by the Appellant who had filed Information Application under Section 19 of the Act before the Competition Commission of India (CCI) as an individual. The Appeal has been ....
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....), National Highway Authority of India (OP-33), Indian Roads Congress (OP-34), Ministry of Environment and Forests, govt of India (OP-35), Quality Council of India Institution of Engineers Building (OP-36) and Central Council for Research in ayurvedi Sciences, Ministry of Ayush (OP-37). The Informant alleged in its information application that NABL has formed various exclusive supply agreements (ESAs) in violation of Section 3(4)(b) of the Act with remaining Opposite Parties where no other accreditation service other than that of NaBL was allowed. The formation of such ESAs is claimed to be deduced from various Tender/Notices/Guidelines/Expression of Interest/Letters/Provisions of the Act etc issued by Ops wherein it is, inter alia, mentioned that suppliers to the said Ops are required to obtain testing or accreditation services from NABL/labs accredited by NABL. On receipt of information filed by the Appellant, the CCI considered averments and allegations. It was noticed that the Informant is primarily aggrieved by the acts of Ops, wherein OP-2 -OP37 have allegedly prescribed the requirement of testing laboratories being accredited by NABL in the various Tender/Notices/Guide....
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....rt his claim in respect of market share or dominance of each of the OPs. For brevity, the product/service in question, for which the OPs have issued/ published Tender/ Notices/ Guidelines/ Expression of Interest/ Letters etc. during various period is tabulated below:- OP Products/Services OP-2 Steel products OP-3 Food products OP-4 Food products OP-5 Agricultural and processed food products and marine products OP-6 Toys OP-7 Steel Products OP-8 Supply of water OP-9 Physical materials OP-10 Test for COVID19 OP-11 Test for skin disorder OP-12 Water and soil OP-13 Construction work material in Regional Rapid Transit System OP-14 Construction material used in irrigation systems. OP-15 Material for construction of metro. OP-16 LED equipment used in Indian Railways OP-17 Services of laboratories for pathological investigations. OP-18 Cement and steel. OP-19 Power conditioners for setting up power grid OP-20 Procurement of goods through GeM OP-21 Calibration of weights and measures OP-22 Diagnostic services OP-23 Construction Material OP-24 Materi....
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....e of what and how it wants. At the cost of repetition, the Commission notes that every consumer/ procurer must have the freedom to exercise its choice freely in the procurement of goods/services and such a choice is sacrosanct in a market economy. While exercising their choice, OPs are free to stipulate standards for procurement, and the same cannot be held to be out-rightly anti-competitive and will depend, inter alia, on factors such as the nature of the procurement, the size of procurer, the goods/ services sought to be procured by it, and whether such buying will result in foreclosure for other sellers operating in the market who are competing to sell and are substantially dependent on such buying process. Further, the autonomy to specify the requirements of procurement is inherent in the procurers. When the procurer is a dominant buyer in its sphere of economic activity and its unilateral conduct in the buying process can tend to distort competition on the supply side of such market, then there is reason to be circumspect. 19. In the present case, as regards OP-2- OP 37 seeking NABL's accreditation (based on their policies/ guidelines/ rules of procurement/ some enact....
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....e was running proprietorship agency of accreditation. However, he filed information in his individual capacity. Had there been any apprehension in the mind of the Appellant regarding disclosure of his entity under the Act itself there was provision to claim secrecy but instead of doing the same the Informant pretended to be individual and had filed the Information Petition. At this juncture it is apt to reproduce Regulation 49 of the CCI (General Regulations) 2009 as follows:- "49 Fee under clause (a) of sub-section (1) of section 19 of the Act. (1) Each information received under clause (a) of sub-section (1) of section 19 of the Act from any person shall be accompanied by proof of having paid the fee as under: (a) Rupees 5000 (Five thousand) in case of individual or Hindu Undivided Family (HUF), (b) Rupees 10,000 (ten thousand ) in case of Non-Government Organisation (NGO), or Consumer Association, or a Co-operative Society, or Trust, or (c)Rupees 40,000 (forty thousand) in case of firm (including proprietorship, partnership or Limited liability partnership) or company (including one person company) having turnover in the prec....
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....y or Cost Accountant, on which he replied that he was not either CA, CS or Cost Accountant. The Act itself prescribes about representation of the parties before the CCI as well as before the Appellate Tribunal. At this juncture it is apt to reproduce Section 35 as well as Section 53(s) of the Act as follows:- "Section 35 of the Competition Act, 2002 35. Appearance before Commission.-A person or an enterprises or the Director General may either appear in person or authorise one or more chartered accountants or company secretaries, or cost accountants or legal practitioners or any of his or its officers to present his or its case before the Commission. Explanation.-For the purposes of this section,- (a) "chartered accountant" means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act; (b) "company secretary" means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certific....
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.... application filed before the CCI as Annexure 2. Annexure 2 starts from Page 55 of the Memo of Appeal which virtually indicates all the information. This document has been signed by Mr. Sumit Jain as counsel for the Informant. On the Memo of appeal in the bottom at page 39, Mr. Sumit Jain has signed as counsel for the Appellant. Again he signed on the declaration of the Appellant at Page 40 depicting him as counsel for the Appellant. Here he has also signed as 'authorised representative'. Before this Tribunal in IA No.1629/2022 which was filed primarily for exemption from filing certified copy of the impugned order, on the index Mr. Sumit Jain has signed as counsel. At page 3 of IA No.1629/2022 on declaration by the Appellant, Mr. Sumit Jain has signed pretending to be counsel for the Appellant. In Volume VIII at Page 2133, in the bottom Mr. Sumit Jain has signed as 'counsel'. In page 2134 on verification in the bottom he signed as Counsel. At page 2137 on caveat clearance in the bottom Mr. Sumit Jain has signed as counsel for the Appellant. In the authorisation which has been brought on record at Page 2138, after acceptance Mr. Sumit Jain has simply put his signatures. The copies ....
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.... Information applications. Unauthorised representation must be checked at its initial stage. ============= Document 1 The appellant submits that it is ready to file written submissions/arguments before the first hearing after serving the copy of the same on respondents. 19. WHETHER THE COPY OF MEMORANDUM OF APPEAL WITH ALL ENCLOSURES HAS BEEN FORWARDED TO ALL RESPONDENTS AND ALL INTERESTED PARTIES The appellant submits that a copy of Memorandum of Appeal with all enclosures has been forwarded to all respondents and all interested parties. Postal receipts for such proof of service have been enclosed. 39 20. ANY OTHER RELEVANT OR MATERIAL PARTICULARS/DETAILS WHICH THE APPELLANT(S) DEEMS NECESSARY TO SET OUT The Appellant does not deem any other relevant material detail necessary to be set out. 21. RELIEF SOUGHT In view of the facts mentioned in paragraph 7 above, points in dispute and questions of law set out in paragraph 8, the appellant prays for the following reliefs: a) Impugned order be set aside b) DG Investigation be ordered with an explicit direction that addition parties be added to the case b....
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.... on records, 3. That the annexures are true copies of their respective originals, 4. That the facts stated in the above affidavit are true to my knowledge derived from the official records, which I believe to be true and correct. No part of the same is false and nothing material has been concealed there from. PUBL LIC PALV Svocate Regn No.-7763 INDIA OF IN Lumik (Counsel) Document 5 2134 2069 VERIFICATION I, the abovementioned deponent do hereby verify that the facts stated in the above affidavit are true to my knowledge derived from official records which I believe to be true and correct. No part of the same is false and nothing material has been concealed from. Identified the depppent w has Signed in my preaved at New Delhi on the 181 DEC December 2021 2021. UBLIC TARY ON SHASHI PAL Advocate Delhi Regn No.-7763 OVT OF IN Th ATTESTED NOTAPY PUBLIC DELS 22 DEC 2021 DEPONENT Sumit (Counsel) Document 6 2137 IN THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL AT NEW DELHI APPELLATE JURISDICTION COMPETITION APPEAL (AT) NO. 27 OF 2022 IN....