TaxTMI 
TaxTMI 
2022 (12) TMI 1062
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....18 Competition Appeal (AT) No. 61 of 2018 Competition Appeal (AT) No. 67 of 2018 Competition Appeal (AT) No. 68 of 2018 ( Justice Rakesh Kumar ) Member ( Judicial ) And ( Dr. Ashok Kumar Mishra ) Member ( Technical ) For the Appellant : Mr. Gaurav Mitra with Mr. Kartik Nagarkatti, Mr. Adit Singh, Advocates For the Respondent : Mr. Manish Vashist, Sr. Advocate with Ms. Avinash Sharma, Ms. Akanksha Kapoor, Mr. Siddhant Chaudhary, Advocates for CCI/R1. Mr. Davander Prasad, Dy. Director for CCI. JUDGEMENT JUSTICE RAKESH KUMAR, MEMBER (JUDICIAL) The aforesaid appeals were taken up for final hearing on 08.08.2022, 15.11.2022 and finally on 28.11.2022 after conclusion of hearing, Judgement was reserved. Despite the fact that on 08.08.2022 appellants counsel were appearing in Competition Appeal (AT) No.43/2018, 49/2018 and 67/2018, in other appeals there was no representation on behalf of the appellants. Accordingly while partly hearing the appeals and deferring hearing to 15.11.2022 it was observed that if on the next date there is none appearance of either of the parties, the Court may proceed ex parte. Again on 15.11.2022 except in Competition Appeal (AT) No.43/2....
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....r dated 01.05.2018 the appellants have preferred the aforesaid appeals. The operative portion of the impugned order dated 01.05.2018 is reproduced hereinbelow:- 97. Thus, considering the totality of facts and circumstances of the present case, the Commission decides to impose penalty on OP-1, OP-2, OP-4, OP-5, OP-6 and OP-7 under Section 27 of the Act by taking into consideration the financial statements filed by them at the rate of 10 (Ten) percent of the average turnover of three financial years 2012-13, 2013-14 and 2014-15. The total amount of penalties imposed on the Ops are set out below: Amount- in rupees S. No Opposite Parties Turnover for 2012-13 Turnover for 2013-14 Turnover for 2014-15 Average Turnover for Three Years 10% of average turnover 1. Fortified Security Solutions (OP-1) 2,56,55,868 46,55,000 89,06,332 1,30,72,400 13,07,240 2. Ecoman Enviro Solutions Pvt. Ltd. (OP-2) 4,55,65,642 4,73,92,830 4,26,61,501 4,52,06,658 45,20,666 3. Lahs Green India Pvt. Ltd. (OP-4) 2,87,03,056 3,86,10,060 5,87,02,356 4,20,05,157 42,00,516 4. Sanjay Agencies (OP-5) 14,88,53,862 1....
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....y the Complainant that the Accused had colluded with each other and committed various irregularities in order to obtain the award of the tenders in their favour 4.Accused No. 1, Fortified Security Solutions ('Fortified' for short), is engaged in the business of electronic security systems, sales and service, health and medical, equipment and instruments, sale-purchases and services. 5. The Complainant does not know the business activity carried on by Accused no. 2, Ecoman Enviro Solutions Private Limited (Ecoman' for short). 6.The Accused have, jointly and severally, committed the offence under section 3 of the Competition Act Section 3 is reproduced herein below 7.While bidding for tender numbers 34, 35, 44, 62 and 63 of 2014 floated by the Pune Municipal Corporation (PMC" for short), they eliminated competition and in order to grant legitimacy to achieving their nefarious design of scuttling competition, the Accused flouted the terms and conditions of the tender in collusion with PMC officials to qualify ineligible bidders 8.The modus operandi used by the Accused to give effect to their conspiracy to engage in collusive bid....
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....ed no. 3 herein, has unabashedly accepted that it is not surprising for one person to own two different firms. The Complainant submits that this is the strongest evidence of wilful collusive bidding by all the accused taken together for their personal gain to the exclusion of the Corporation and to obtain wrongful and unlawful gain which the accused would not have obtained but for acting in contravention of Section 3 of the Competition Act in which process they have caused wrongful and unlawful loss to the State Exchequer 10. An analysis of the bids of the companies qualified technically shows that none of the companies is technically eligible. It will be seen from the tender notice issued in the name of Accused no. 3 that certain pre-qualification and technical criteria had been specified in order to be eligible and qualified to bid However, the MSW Department of the Accused no. 3, while purporting to act for Accused no 3 has technically approved companies that are not in the business of solid waste processing plants. A bare perusal of the Tender Notice would evince that the Accused No.2 did not even qualify the technical criteria because of lack of relevant expe....
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....tail the evidences, both direct and circumstantial, in support of the allegations. With each and every piece of evidence in the following paragraphs, whether considered singly or with others, the Complainant seeks to establish the manner in which the accused have pre-determined the bid and the bidder, limiting the investment and services to be provided and adversely affected domestic/local competition 14 A perusal of Accused no 2's IT return for AY 2012-13 shows net taxable income of Rs 1,97.910/- and tnx plus interest as Rs.2,07,091/- Le more than 100% of the taxable income. The turnover as per the certificates from the Chartered Accountants is between Rs 4,50 to Rs 4.75 Crores for the period 2012-13 and 2013-14 It is evident that the Accused no 2 did not have the financial strength to implement five projects worth Rs 14.82.94.580/ almost simultaneously. Additionally, tax plus interest paid for A Y 2012-13 and thirteen-fold jump in income in just one year in A.Y 2013-14 should have been legitimate subjects of enquiry warranting due diligence and most probably elimination of Accused no 2 resulting in re-evaluation of the bids or a re- tender This indi....
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....e both quoted the same Model no. F-125 b) in tender nos: 34 and 44-2014, the Accused no. 2 and Lahs have the same notary, same bank for demand draft and in 44-2014, the serial numbers of demand drafts are one after another showing collusion. c) Accused no. 1 has submitted the PAN card and IT returns of the owner, ie Bipin Vijay Saltinke (who also owns Accused no 2) and not of the company The certificate from the CA is also not for the Company The inescapable conclusion is that the company are either non-existent or not audited for fear of revealing unpalatable facts. All these eventualities are highly questionable d) in all the affidavits and indemnity bonds (except for Accused no 2). the name of the person signing the affidavit or the indemnity bond is not mentioned and the signatures are also not decipherable. This is an effort to hide identity to facilitate the same person signing differently for different companies e)Mahalaxmi Steel is authorised by Raghnath Industry Pvt Ltd as it's distributor in bid no. 63-014 Raghunath Industry Private Limited has, on its board, a person called Sonali Vijay Salunke who appears to be related to....
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.... of Mr. Bipin Vijay Salunke He is also the owner/director of Fortified Security Solutions. Accused no.1 herein and Ecoman, Accused no.2 herein Sonall Sahasrabudhe, nee Sonali Vijay Salunke is the sister of Mr. Bipin Vijay Salunke, Hence, Raghunath Industry Private Limited, Accused No 1 and Accused No.2 are all owned by/related to the same owner and have participated in different tenders through different companies to rig the bids p)A South Korean company by the name Eco-wiz authorized Sanjay Agency for tender nos. 62 & 63 and had earlier given a similar certificate in tender nos, 34 & 35 to LAHS Green. A careful scrutiny of the signatures points to the signature being copied on to the other document q)All the experience certificates submitted by Accused no.2 are from PMC. Only to show it's compliance with the technical requirement of having past experience with Other Municipal Councils, Accused no 2 has annexed documents purporting to be experience certificates, while in reality being more work orders The Accused No.2 has also failed to submit any document to evince one year's operation & maintenance experience as mandated in the Tender Notice at Exhibit 8....
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....ve, the Complainant most humbly prays this Hon'ble Commission for the following reliefs a Order an inquiry by the Director General into the tender process of the tender numbers 34, 35, 44, 62 and 63 of 2014 of MSW Department of Pune Municipal Corporation under Section 19 of the Act b. Direct Accused nos 1 and 2 to discontinue and not to re-enter such agreement, c.Impose a penalty of ten per cent of the average of the turnover for the last three preceding financial years upon each person and enterprises, which are parties to such agreements: d. if it is established that the agreement has been entered into by a cartel, impose upon each entity included in that cartel, a penalty of ton per cent of its turnover for each year of the continuance of such agreement, whichever is higher e)Refer matters pertaining to corruption in the tender process to the Anti Corruption Bureau, Maharashtra State f)Direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any: g. Pass such other orders or issue such directions as the Commission may ....
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.... (if any) of the persons who were in charge of and were responsible for the alleged conduct of such companies." 9. After the order passed under Section 26(1) of the Act by the CCI, the DG conducted thorough investigation. During investigation petition under Section 46 of the Act read with Regulation 5 of Regulation 2009 were filed by almost all the opposite parties before the CCI, which are appellants before this Tribunal. The DG in its investigation report concluded as follows:- "It is seen that there was meeting of minds amongst M/s Fortified Security Solution (OP-1), M/s Ecoman Enviro Solutions Pvt Ltd (OP-2), M/s Lahs Green India Pvt Ltd (OP-4), M/s Sanjay Agencies (OP-5) and M/s Mahalaxmi Steels (OP-^) in response to tender nos 34, 35, 44, 62 and 63 of 2014 floated by Pune Municipal Corporation (OP-3) for making OP-2 as the winner of the bid in the said cartel. Thus it is concluded that these Ops have indulged in bid-rigging and collusive bidding in response to the said tenders of OP-3 which is in contravention of provisions of Section 3(3)(d) r.w..s3(1) of the Act." 10. The DG during investigation also examined the involvement of officials of Pune Municipal Cor....
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....tions (OP-1), a co-bidder in the said tenders. The motive of this cartelization and bid-rigging in the said tenders was to make M/s Ecoman Enviro Solutions Pvt. Ltd. (OP-2) emerge the L1 bidder by arranging proxy/cover bidders and thereby bag the said tenders. In order to do so. Shri Bipin Vijay Salunke ensured that there were three eligible bidders so as to comply with the tender process guidelines that specified a minimum of three technically qualified bidders for each bid. For doing so, Shri Bipin Vijay Salunke, approached the directors/partners/proprietors of other OPs-M/s Lahs Green India Pvt. Ltd. (OP-4), M/s Sanjay Agencies (OP-5) and M/s Mahalaxmi Steels (OP-6) to provide relevant documents for filing the tender. Since, the proxy/cover bidders did not have any experience or background in solid waste management, Shri Bipin Vijay Salunke arranged for authorization certificates as distributors from M/s Raghunath Industry Pvt. Ltd. (OP-7) in which his father Shri Vijay Raghunath Salunke is a Director, for them as being the authorized distributor of its composting machine. Further, Shri Bipin Vijay Salunke prepared the bank demand drafts for earnest money deposit for th....
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.... Shri Parimal Salunke and Shri Vijay Raghunath Sahnke, for anging the relevant documents and preparation of bank drafts. Further Shri Saiprasad S. Prabhukhanolkar (Managing director of M/s Labs Green India Pvt. Ltd.), Shri Sanjay S. Gugle (partner of M/s Sanjay Agencies) and Shri Manoj Kumar Gupta (proprietor of M/s Mahalaxmi Steels) acquiesced to his request and provided the relevant documents to be the proxy cover bidders in tender nos. 34, 35, 44, 62 and 63 of 2014. Thus they aided in abetment of the cartelisation and bid rigging. 9.6 Role of officials of Pune Municipal Corporation (OP-3) Issues of systemic failure on the part of OP-3 have already been pointed out. Taking appropriate measures regarding these by PMC could have prevented the cartel. Further, the report suggests that role of some of the officials of OP-3 Le. Shri Sanjay Atmaram Gawade (Assistant Municipal Commissioner) Shri Ravindra Krishna Mulay (Branch Engineer) and Shri Suresh Jagtap (Joint Municipal Commissioner, who telephonically conversed with Shri Bipin Vijay Salunke Shri Parimal Salunke should be examined vis-à-vis their locus standi if they were required to telephonically speak to....
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.... to fulfil eligibility criteria enabling them to participate in the PMT Tender. However, at much belated stage i.e. on 20.09.2016 OP No.1 filed application under lesser penalty application accepting therein that it had submitted cover bids in Tender No.34, 35 and 44 of 2014. It also provided documents in support thereof. 13. The Learned CCI also discussed the profile of the opposite parties/appellants. It was noticed that OP No.1/Fortified Security Solutions was a proprietory concern of Mr Bipin Vijay Salunke which was engaged in the business of sales and service of electrical security system, health and medical equipment whereas OP No.4/Lahs Green India Pvt Ltd was engaged in solar water heating, lighting and water and purifying sales and equipment for residential and commercial applications whereas OP No.5 Sanjay Agency was a pharmaceutical dealer and stockist of drugs. OP 6 Mahalaxmi Steel being proprietorship firm was engaged in the steel trading business. The CCI in its order impugned elaborately discussed different issues which establishes categorical case of cartelisation in the alleged bid by the appellants. Even during enquiry by the CCI statement of appellant Manoj Kr,....
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....i Steels, Ecoman Enviro Solutions Pvt. Ltd., Fortified Security Solutions and Raghunath Industry Private Limited will pay 10% of the respective penal amount within four weeks. The individual appellants will pay full penalty imposed on them within the aforesaid period of four weeks, subject to the decision of the appeal". 15. In view of aforesaid order there was very limited scope for advancing argument by learned counsel for the appellant on merit. However, learned counsel for the appellants at the time of final hearing had also argued on merit of the case. Since there was rider on argument on the point of merit in view of order dated 16.07.2018, we feel it not appropriate to discuss all aforesaid submissions. However, Mr. Gaurav Mitra, learned counsel for the appellant in Competition Appeal (AT) No.43/2018 has emphatically argued that learned CCI contrary to the law laid down by Hon'ble Supreme Court in Excel Crop Limited has considered the turnover. According to learned counsel for the appellant the penalty imposed by the CCI on the basis of three years turnover was incorrect. Mr. Mitra, learned counsel for the appellant has specifically referred to para 71 to 74 on the point ....
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.... therein was concerned with the provisions of Section 59(20) of the Competition Act, 1998 of South Africa which also provides for maximum penalty of 10% of the annual turnover. The Court held that the appropriate amount of penalty had to be determined keeping into consideration the damage caused and the profits which accrue from the cartel activity. The Appeal Court used the words 'affected turnover'. It determined the amount of penalty on the basis of these guidelines issued by the European Union (EU) and the Office of Fair Trade (OFT). In that case the concerned company Southern Pipeline Contractors was a multi-product company and the 'affected turnover' was comparatively small. 73) It is interesting to note that the parties on either side are resting their cases on the same principle of statutory interpretations. Pertinently, Section 27(b) of the Act while prescribing the penalty on the 'turnover', neither uses the prefix 'total' nor 'relevant'. It is in this context, taking aid of the applicable and well-recognised principle of statutory interpretations we have to determine the issue. 74) In the absence of specific provision as to whether such turnover has to ....
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....nce the "plain meaning" of the words in a statue have been identified there is no need for further interpretation. Different considerations can apply, however, in cases where a statute would be unconstitutional if interpreted literally. This is one of those exception cases, in that a literal interpretation of s. 13(1)(a) would fail to meet the test for overbreadth established in Heywood. The state objective underlying s. 13(1)(a) EPA is, as s. 2 of the Act declares, "the protection and conservation of the natural environment". This legislative purpose, while broad, is not without limits. In particular, the legislative interest in safeguarding the environment for "uses" requires only that it be preserved for those "uses" that are normal and typical, or that are likely to become normal or typical in the future. Interpreted literally, s. 13(1)(a) would capture a wide range of activities that fall outside the scope of the legislative purpose underlying it, and would fail to meet s.7 overbreadth scrutiny. There is, however, an alternative interpretation of s.13(1)(a) that renders it constitutional. Section 13(1)(a) can be read as expressing the general intention of s. 13(1) as a whole, ....
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....make a fortress out of dictionary but remember that statutes always have some purpose or object to accomplish and sympathetic and imaginative discovery is the surest guide to their meaning. 47. We have noted the object of Section 16(3) of the Act which has to be read in conjunction with Section 24(2) in this case for the present purpose. If the purpose of a particular provision is easily discernible from the whole scheme of the Act which in this case is, to counteract the effect of the transfer of assets so far as computation of income of the assessee is concerned then bearing that purpose in mind, we should find out the intention from the language used by the Legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then s....
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....bsurdity and mischief may be avoided. It was held that construction suggested on behalf of the Revenue would lead to a wholly unreasonable result which could never have been intended by the legislature. It was said that the literalness in the interpretation of Section 52(2) must be eschewed and the court should try to arrive at an interpretation which avoids the absurdity and the mischief and makes the provision rational, sensible, unless of course, the hands of the court are tied and it cannot find any escape from the tyranny of literal interpretation. It is said that it is now well-settled Rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the legislature, the court may modify the language used by the legislature or even "do some violence" to it, so as to achieve the obvious intention of the legislature and produce a rational construction. In such a case the court may read into the statutory provision a condition which, though not expressed, is implicit in construing the basic assumption underlying the statutory provision.... 34. As would be overw....
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....as been adopted in Amolakchand Chhazed v. Bhagwandas; MANU/SC.0086/1976 : (1977) 3 SCC 566. A Bench of three Judges of this Court held thus: "12....Election petitions alleging corrupt practices are proceedings of a quasi-criminal nature and the onus is on the person who challenges the election to prove the allegations beyond reasonable doubt." (iv) In such a situation even if two interpretations are possible, one that leans in favour of infringer has to be adopted, on the principle of strict interpretation that needs to be given to such statutes. (v) When the agreement leading to contravention of Section 3 involves one product, there seems to be no justification for including other products of an enterprise for the purpose of imposing penalty. This is also clear from the opening words of Section 27 read with Section 3 which relate to one or more specified products. It also defies common sense that though penalty would be imposed in respect of the infringing product, the 'maximum penalty' imposed in all cases be prescribed on the basis of 'all the products' and the 'total turnover' of the enterprise. It would be more so when total turnover of an enterprise....
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.... only 32.41 crores. However, as against this, the CCI imposed penalty of Rs. 63.90 crores by adopting the criteria of total turnover of the said company with the inclusion of turnover of the other products as well. Likewise, UPL was imposed penalty of 252.44 crores by the CCI as against average of the three years' turnover of APT of Rs. 77.14 crores. Thus, even when the matter is looked into from this angle, we arrive at a conclusion that it is the relevant turnover, i.e., turnover of the particular product which is to be taken into consideration and not total turnover of the violator. (vii) The doctrine of 'purposive interpretation' may again lean in favour of 'relevant turnover' as the appropriate yardstick for imposition of penalties. It is for this reason the judgment of Competition Appeal Court of South Africa in the Southern Pipeline Contractors Conrite Walls19, as quoted above, becomes relevant in Indian context as well inasmuch as this Court has also repeatedly used same principle of interpretation. It needs to be repeated that there is a legislative link between the damage caused and the profits which accrue from the cartel activity. There has to be a relationship....
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....hat in some of the jurisdictions cited by Mr. Kaul, learned Additional Solicitor General, the guidelines are also framed which ensure that the penalty does not become disproportionate, for example, in the UK, the Office of Fair Trade (OFT) has 'guidelines as to the appropriate amount of penalty'. In contrast, there are no similar guidelines issued as far as India is concerned and in the absence thereof imposition of penalty, taking into consideration total turnover, may bring about disastrous results which happened in the instant case itself with the imposition of penalty by the CCI. Thus, we do not find any error in the approach of the order of the COMPAT interpreting Section 27(b)." 16. He further submits that the learned CCI in imposing penalty has exercised its discretion indiscreet manner. He submits that it is true that as per provisions contained in Section 26(b) of the Act, the CCI was competent to impose penalty upto 10% of the average of the turnover of the last three preceding financial years, the Learned CCI without giving detailed reason for taking higher 10% of the average turnover has committed serious error, particularly in view of the fact that most of ....
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....nicipal Corporation for design, supply, installation, commissioning, operation and maintenance of organic and inorganic Solid Waste Processing Plants. The Ld. Commission has relied upon its Order dated 1.5.2018 to arrive at a conclusion of violation of Section 3(3)(d) of the Act on the part of the Appellants. The Ld. Commission has not imposed any penalty on the Appellants vide this order, in view of the fact that penalty had been already imposed in Case No. 50/2015 which pertained to the same period. The Appellants herein are aggrieved by the finding of violation of Section 3(3)(d) of the Act, arrived at by the Ld. Commission. THE SUBMISSIONS OF THE APPELLANTS IN SUPPORT OF APPEAL NO. 49/2018 ARE AS FOLLOWS: 1. The Appellant No. 1 is a private limited company registered under MSME Act dedicated to "Swachh Bharat Abhiyan Mission" engaged in the business of solar water heating, lighting and water purifying solutions and equipment for residential and commercial applications. It also specialises in zero waste management, in which wet and dry garbage is treated which results in zero dumping. 2. The Appellants are highly reputed in their business circle due to....
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....o conclude that in case of the said section, there is a presumption as to AAE. In the subsequent paragraphs thereafter, the Ld. Commission then proceeded to (erroneously, as demonstrated in para 3 above) conclude that the Appellants have failed to discharge the onus to rebut the presumption. It is submitted that the Ld. Commission has not even discussed the factors relevant under Section 19(3). The interpretation therefore placed by the Ld. Commission would amount to rendering Section 19(3) otiose. 6. The decision (pg. 180) to award maximum penalty to Appellant No. 1 is devoid of any reason or discussion as to mitigating factors etc. [Ref: Excel Crop Care Limited v. CCI & Ors. 2017(8)SCC 47 @ para 113 Judgment of CompAT dated 25.2.2013 in MDD Medical Systems India Pvt. Ltd. v. Foundation for Common Cause and People Awareness & Ors. @paras 19-21, 24-28]. 7. The several mitigating factors which have not been considered by the Commission are: i) That the Appellant No. I had no antecedents of violation of the Act, nor had the Appellant No. 1 derived any commercial benefit from the actions: ii. That the Appellant No. 1 has co-operate....
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.... ingredients of Regulation 4 of the LP Regulations, which governs grant of lesser penalty are: i)The Applicant is the 1" to make a vital disclosure; ii. By submitting evidence of a cartel: iii which enables the Commission to form a prima facie opinion regarding existence of a cartel: iv. and the Commission was not possessed of sufficient evidence to form such an opinion. The parameters for exercise of discretion of the Commission are set out in Regulation 3(4) and are as follows: a. the stage at which applicant comes forward; b. b. the evidence already in possession of Commission; c. the quality of information provided: d entire facts & circumstances: 14. It is submitted that the burden to be discharged by an Applicant under the LPR Regulations is to show the existence (as opposed to conclusive proof) of the cartel so as to form a prima facie view. It is submitted that the ikmation set out by the Appellant No. 1 in its LPR application (reproduced in paragraph 7 above) was sufficient to show the existence of the cartel. 15. Appellant No. I was the 1st in respect of the Subject Tenders ....
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....II). It is submitted that prior to the receipt of the said information, the Appellant No. had provided sufficient material for the Commission to arrive at a prima facie view of cartelization. The findings of the Commission in paragraph 118 of the impugned order are also relevant in this regard. 18. Notwithstanding all of the above findings, the Commission has granted only 50% reduction in penalty to the Appellant No. 1. It is submitted that the Appellant had provided the most vital piece of disclosure (ie. the modus operandi) for arriving at a prima facie view of cartelization. In this view of the fact. 100% reduction in penalty ought to have been granted to Appellant No, I by the Ld. Commission. 19. It is submitted that the consideration for 100% reduction is that the disclosure must enable formation of a prima facie opinion. It is submitted that even without the details of the IP addresses, the information submitted vide the Appellant No. I's LPR Application was sufficient for formation of prima facie opinion. The details of IP address etc, are merely corroborative. 20. The legal submissions in respect of the interpretation of Section 3(3), 27(b) an....
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....ed hereinbelow : "5.If the conditions stipulated in the section are satisfied Commissioner has a discretion in the matter. In exercise of that discretion, Commissioner can either reduce the amount of the penalty or he may even waive the entire penalty. It is for the Commissioner to decide on the facts of a particular case whether a waiver in entirety or a reduction alone is warranted. 6.The words "the Commissioner may in his discretion......reduce or waive the amount of penalty" in Section 18-8 of the Act are clear enough to show that the power conferred on the Commissioner is to be exercised by his in such manner as he deems just and proper. When a discretion is conferred on an authority the same must be exercised fairly and not arbitrarily, justly ad not fancifully vide S.G. Jaisinghani vs. U.O.I. & others: AIR 1967 SC 1427. 7.Even if the legislature has not used the words "in his discretion" in Section 18(B)(1) Commissioner could have exercised only a discretionary power in view of the employment of the word "may". Now when the Parliament used both expressions "may" and "in his discretion" together, the position is placed beyond the pale of any doubt t....
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....00, Narayan Bhagwantrao Gosavi Balajiwale Vs Gopal Vinayak Gosavi & Others and referred to para 12 which is quoted hereinbelow: "12. In the present case, the burden of proof need not detain us for another reason. It has been proved that the appellant and his predecessors in the title which he claims, had admitted on numerous occasions that the public had a right to worship the deity, and that the properties were held as Devasthan inams. To the same effect are the records of the revenue authorities, where these grants have been described as Devasthan, except in a few cases, to which reference will be made subsequently. In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous. We shall now examine these admissions in brief and the extent to which they went and the number of times they were repeated." 21. Besides making prayer for dismissal of the appeal on both the count i.e. on merit as well as on ....
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....ter vide order dated 28th June 2016. 5. The DG, after completing the investigation submitted the Investigation Report to the CCI on 23rd November 2016. Copy of the DG Report is already annexed as Annexure A 13 [Page 336 to 476] of the Appeal No. 43/2018 [Volume 3] During investigation, in August September 2016, Lesser Penalty Applications were filed by the Parties under Section 46 of the Competition Act, 2002. For details of the Lesser Penalty Applications filed by the Parties, kindly see, Para 5 to 8 of the Impugned Order, for summary of DG's Investigation, kindly see, Para 17 to 37 of the Impugned Oder, annexed as Annexure A-1 of the Appeal No. 43/2018 [Volume 11. 6. In the present case, the CCI has considered the submissions of the parties [Kindly see, Para 38 to 66 of the Impugned Order], and made detailed analysis (Kindly see Para 67 to 93 of the Impugned Order] After detailed analysis, the CCI proceeded with "Computation of Penalty [Para 94 to 99 of the Impugned Order], "Evaluation of Lesser Penalty Applications [Para 100 to 134 of the Impugned Order], and finally "Remedies including imposition of fines [Para 135 to 140 of the Impugned Order] In fact, a ....
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....pellate jurisdiction under Section 53-A and 53-B of the Competition Act, 2002. 10. It will not be out of place to mention here that in the aforesaid 5 tenders in question, public money worth several crores were involved [See Para 19 of the Impugned Order] and as the DG investigations reveals the Opposite Parties were successful in sabotaging/ defrauding the state exchequer fraudulently by having/ putting proxy bidders in all the aforesaid tenders. Hence, apart from the contravention under the provisions of the Competition Act, 2002, it also attracts various provisions of the Indian Penal Code and Prevention of Corruption Act for which the requisite cognizance may be taken." 23. Besides hearing learned counsel for the parties we have minutely perused the entire materials available on record which include information application filed by the informant, leniency application, Investigation Report submitted by the DG and also the impugned order passed by the CCI. On examination of entire material we are of the opinion that sufficient evidence were brought on record to show forming cartelisation by the appellants in influencing tender. It was specific case of contravention of....
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.... in that case were altogether different from the facts of this case. The Hon'ble Supreme Court invoked the principle of 'proportionality' and doctrine of 'purposive interpretation' in Excel Corp Care case to interpret the term 'turnover' in Section 27 of the Act as 'relevant turnover' to ensure that infringer does not suffer punishment which may be disproportionate to the seriousness of the infringement. This cannot be interpreted to mean that the infringer should not be punished at all. In fact, Hon'ble Supreme Court has stated that the perpetrators of anti-competitive practices need to be indicted and suitably punished and the aim of penal provision is to ensure that it acts as deterrent for others. The relevant portion of the judgement of Hon'ble Supreme Court is reproduced below: "74) ...(vi).... No doubt the objective contained in the Act, viz., to discourage and stop anti-competitive practices has to be achieved and those who are perpetrators of such practices need to be indicted and suitably punished. It is for this reason that the Act contains penal provisions for penalising such offenders. At the same time, the penalty cannot be disproportionate and it should not ....
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....y not be held that CCI in no case can impose higher penalty upto 10% but in such situation it would be required for the CCI to afford full opportunity to the concerned party to address the CCI as to why such higher penalty may not be imposed. On going through the impugned order we find no indication as to whether the appellants were asked to explain regarding exemplary penalty i.e. maximum 10% or detailed reasons has been assigned for the same. It is true that in respect of imposing penalty discretion has been given to the CCI, but at the same time it is settled that discretion may not be exercised indiscreet manner. We are of the opinion that though discretionary jurisdiction may not be interfered with but in view of facts and circumstances particularly the fact that discretion by the CCI in the present case has not been exercised in a reasonable manner it would be a fit case for remanding back the matter to CCI to examine the issue to afford opportunity to the appellants to address on the point as to whether instead of exemplary penalty i.e. upper limit of 10%, the appellants are entitled to get the said percentage reduced or not. Without interfering with the merit of the case th....
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....ropriate measures regarding these issues could have prohibited such cartel activity. The call details records of Shri Sanjay Atmaram Gawade (Assistant Municipal Commission), Shri Ravindra Krishnanath Mulay (Brnach Engineer) and Shri Suresh Jagtap (Jointer Municipal Commissioner) were examined and it wasnoted that there were a number of calls which have been exchanged on mobile No.7720999222 and 7720999333 registered in the name of M/s Ecoman Enviro Solutions Pvt Ltd (OP2) and are being used by Shri Parimal Salunke (770999222) and Shri Bipin Vijay Salunke (7720999333). However, Shri Sanjay Atmaram Gawade (Assistant Municipal Commissioner) and Shri Ravindra Krishnanath Mulay (Branch Engineer) in their statement on oath have stated that these calls were for the purpose of compliance to be given in court/NGT/questions related to Assembly of Maharashtra an/or implementation of work/work-orders/operations of the machinery and other work-related talks for previous tenders, respectively. Also Shri Suresh Jagtap (Joint Municipal Commissioner) in his statement on affidavit has stated that the calls were made/received to/from Shri Parimal Salunke and Shri Bipin Vijay Salunke....