TaxTMI 
TaxTMI 
2024 (11) TMI 1001
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....rough The Secretary, Department of Atomic Energy. OP-2 is a Government of India undertaking which functions under the administrative control of DAE and engaged in mining and chemical processing of mineral sands containing Uranium, Thorium and rare earth minerals and producing minerals such as Ilmenite, Rutile, Monazite, Zircon, Uranium, Thorium, Garnet etc. 4. As per the Information, Columbite and Tantalite ores are chemically processed to extract Niobium and Tantalum products which are used in a range of industries including for developing an ecosystem for semi-conductor industry and therefore, are strategically important for the development of new-age technologies in India. 5. It has been stated that while processing the Columbite and Tantalite ores, 'Slag' or 'Leach Residue' is generated, which is a radioactive substance/prescribed substance/by-product. It has also been stated that under the Atomic Energy Act, 1962 ("AEA") and Atomic Energy (Working of the Mines Minerals and Handling of Prescribed Substances) Rules, 1984 ("Prescribed Substances Rules"), DAE is the only competent authority in India entrusted with the task of granting license for importing and processing Col....
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....y, was the subject matter of 2- year contracts executed on largely identical terms between the Informant and IREL and subsisted for 15 years. 11. It has further been stated that the disposal plan does not have a sunset clause under the stated legal framework and consequently, the two-year off-take agreement also do not have any termination clause. Further, citing an RTI reply dated 01.12.2020 from AERB, the Informant has stated that AERB has not received any directives regarding termination of the disposal plan by DAE. 12. It has been stated that the Informant had applied for renewal of the said agreement on 28.02.2017, exactly one month prior to the expiration of the last agreement; however, by a letter dated 12.01.2018, IREL refused to renew the agreement: (a) without stating any reasons for non-renewal, (b) applying the non-renewal retrospectively from 27.03.2017 (after a lapse of 10 months) and (c) without any fault of the Informant. As per the Information, IREL in its letter to the Informant dated 27.02.2018, stated the following: "......If MPIL residue is made fluoride-free, it may be useful for further processing. However, no such process is available at IREL for remov....
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.... 17. It has also been stated that there were periods during 10.08.2004 to 27.03.2017 when a particular off-take agreement had expired and was awaiting renewal, but the same did not affect the obligation or assurance of DAE acting in this case through IREL to dispose of the Leach Residue as stated above. IREL continued to lift the Leach Residue from the Informant's premises even during periods when the off-take agreement had expired and was pending renewal. Further, DAE also issued import licenses to the Informant during such periods. It has been stated that since IREL used to routinely delay the renewal of the off-take agreement, the Informant presumed renewal of the next two-yearly off-take agreement up to 26.03.2019. It was stated that intimating discontinuance 10 months after expiry of the off-take agreement, which was not preceded by any communication or show cause notice, is unlawful. 18. It has also been stated that while IREL, in its letter dated 12.01.2018, had stated that DAE asked it to discontinue the off-take agreement, DAE in its letter dated 03.01.2019 had stated that IREL intimated them about their inability to process the Informant's Leach Residue as there is ....
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....Informant has proposed the relevant product market as "the market for disposal of Uranium bearing Leach Residue generated during the processing of Columbite and Tantalite ores". With regard to the geographical market, it has been stated that the import and processing conditions of disposal of the Uranium- bearing Leach Residue are homogenous across the country. Based on the foregoing, it has been proposed by the Informant that the relevant market for assessing the DAE's and IREL's conduct can be defined as the "market for disposal of Uranium-bearing Leach Residue produced during the processing of Columbite and Tantalite ores in India". 23. As per the Informant, both DAE and IREL, based on its analysis of several factors such as market share, dependence of consumers on the enterprise, entry barriers and countervailing buying power, are dominant in the proposed market in their respective functions. It has been stated that by virtue of the dominance in their respective functions, DAE and IREL have abused their position by: a. Arbitrarily refusing to renew the off-take agreement after 2017, rejecting import licenses applications and subsequently refusing to approve an alter....
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.... the restricted supply of Niobium and Tantalum, (iii) balance of convenience lies squarely in favour of the Informant as no harm would be caused to the DAE and IREL if the interim relief sought below is granted. 26. Based on the above grounds, the Informant has sought interim relief by way of: (i) Directing DAE to withdraw directions contained in its letter dated 16.05.2019 requiring the Informant to stop processing ores, which are the Informant's basic raw materials. (ii) Directing DAE to issue pending import licenses and future licenses as was done in past and quash DAE's letter to the Informant dated 03.01.2019. (iii) Directing DAE to order IREL to execute and enforce fresh off-take agreement with the Informant for disposal of Uranium-bearing Leach Residue generated at the Informant's plant and ensure IREL's continual compliance with the said agreements. Alternatively, it was stated that DAE may appoint any other DAE unit in lieu of IREL, keeping the off-take agreements alive at all times which would also cover the accumulated 147 MT of Uranium-bearing Leach Residue, which is till date awaiting collection in a legitimate manner by IREL and as per th....
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....ection 2(h) of the Act is reproduced as under: " "enterprise" means a person or a department of the Government, including units, divisions, subsidiaries, who or which is, or has been, engaged in any economic activity, relating to the production, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, but does not include any activity of the Government relatable to the sovereign functions of the Government including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space;" 32. The Commission has also perused the Government of India (Allocation of Business) Rules- 1961, which provides that the following business, among others, of Government of India is the responsibility of DAE: "1. All matters relating to - (a) Atomic Energy Commission (AEC); (b) Atomic Energy Regulatory Board (....