TaxTMI 
TaxTMI 
2023 (7) TMI 1537
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....gis, Ms. Srisuti Vashisht, Ms. Gayathri Virmani, Mr. Raj Surana, Ms. Disha Gupta, Advocates for CCI. Ms. Shama Nargis, DD (CCI), Ms. Srishti Vashisht for CCI. Ms. Smriti Churiwal, Advocate for RP Mr. Vikram Nankani, Sr. Advocate with Mr. Vikram Wadehra, Advocate for R-3/RP. Mr. Mukul Rohatgi, Mr. Arun Kathpalia and Mr. Krishnendu Datta, Sr. Advocates, Mr. Vaibhav Gaggar, Mr. Sanjeev Sharma, Mr. Akshay Nanda, Ms. Neha Mishra, Ms. Sanya Sud, Ms. Vaishali Goyal, Ms. Praniti Ganjoo, Mr. Aditye Arora, Ms. Threcy Lawrence, Ms. Vaishnavi Bansal, Mr. Ketan Saraf, Ms. Kokila Kumar, Mr. Rajat Sinha, Ms. Diksha Gupta, Ms. Neha Agarwal, Advocates. Mr. Yadhunath Bhargavan, Mr. Akshay Chandra, Mr. Rahul Choudhary, Mr. Ravjyot Singh, Mr. Utkarsh Bhanu, Advocates in I.A. No. 2443/2023 JUDGMENT ASHOK BHUSHAN, J. These four Appeal(s) have been filed against the same order dated 15.03.2023 passed by the Competition Commission of India (hereinafter referred to as the "CCI") under Section 31, sub-section (1) of the Competition Act, 2022 (hereinafter referred to as the "Act") approving the combination in response to the notice given by Respondent No.2, under Section 6, sub-sectio....
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....t of the show-cause notice, as to why investigation in respect of the proposed combination should not be conducted. (v) A letter dated 23.02.2023 was sent by the Commission to the Appellant (UPGMS) in reference to the objection and representations filed by the Appellant in Combination Registration No.C-2022/11/983. The copy of the order dated 22.02.2023 passed by the CCI was sent to the Appellant. The Commission communicated that the concern expressed relating to the assessment of the proposed combination has been noted by the Commission. It was communicated that no personal hearing can be granted. The Appellant filed an application before the CCI on 16.02.2023 for inspection of the case records. The request submitted by the Appellant - The U.P. Glass Manufacturers Syndicate (for short "UPGMS") was not acceded and a letter dated 07.03.2023 was sent to the UPGMS by the CCI. (vi) The Acquirer submitted a response to show-cause notice vide its letter dated 10.03.2023. Along with reply to show-cause notice, the AGI submitted certain voluntary modifications. Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 7 Certain additional clarification regarding voluntary modif....
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....t the business of several industries that are dependent on the container glass industry. Smaller players like the Members of UPGMS shall be adversely affected. The Appellant has also given certain details with regard to proceedings against HNG in the insolvency proceedings, which are not necessary to be noticed for deciding the Appeal. Competition Appeal (AT) No. 08 of 2023 5. This Appeal has been filed by Independent Sugar Corporation Limited ("INSCO") claiming to be a company incorporated under the laws of Bermuda. The company INSCO is held by two groups of companies - RAMCO Holding Limited having 50% shareholding and Emil International Holdings Limited having the other 50% shareholding. The INSCO has also submitted its Resolution Plan in the insolvency proceedings of HNG. The Appellant had also given notice to the CCI under Section 6, sub-section (2) of the Act. The Appellant received the requisite approval from CCI vide Notice C-2022/09/974 dated 30.09.2022 under the Green Channel Route. The Appellant was therefore in receipt of the necessary certificate approval, prior to the approval of the Resolution Plan being voted by the CoC. The INSCO aggrieved by the order dated 1....
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....odification which include closure of certain important productions units, would result in the loss of employment of several Members of the trade unions and as such Appellant being the most affected stakeholder be given an opportunity of being heard. The Appellant question's the order on several grounds. It is pleaded that CCI has failed to follow the process of law and principles of natural justice in passing the impugned order. 8. We have heard Shri Ratnako Banerji, learned Senior Counsel; Shri Rajshekhar Rao, Learned Senior Counsel for Appellant in Competition Appeal (AT) No.07 of 2023; Shri Abhimanyu Bhandari, learned Counsel has appeared in Competition Appeal (AT) No.08 of 2023; we have heard Shri Buddy Ranganadhan, learned Counsel in Competition Appeal (AT) No.09 of 2023 for the Appellant and Shri Yadhunath Bhargavan, learned Counsel appeared in Competition Appeal (AT) No.10 of 2023 for the Appellant. Shri Naveen R Nath, learned Senior Counsel with Shri Udayan Jain, learned Counsel appeared for Competition Commission of India. We have heard Shri Mukul Rohatgi, learned Senior Counsel, Shri Arun Kathpalia and Shri Krishnendu Datta, learned Senior Counsel for Respondent No.2 -....
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....to the notice. In the present case, the CCI has not proceeded to act as per Section 29 sub-section (2), since it did not issue any direction to the parties of combination to publish the details of the combination for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination, which procedure was skipped by the Commission. The interpretation put by the CCI to Section 29 (1) and (2) is not in accord with the scheme of the provisions of the Act. Section 30 itself provides that when a notice under sub-section (2) of Section 6 has been received, the Commission shall examine such notice and form its prima facie opinion under sub-section (1) of Section 29 and proceed as per provisions contained in that Section. Section 30 itself makes it clear that after formation of prima facie opinion under Section 29, sub-section (1), other part of Section 29 has to be followed as mandated by Section 30. Mandatory procedure has to be followed even where modification is offered under Regulation 25 (1-A) of the Combination Regulations, 2011. 12. As per Regulation 19 of the Combination Regulations, 2011, the Commission may ac....
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....allenge the order dated 15.03.2023. The Appeal under Section 53B can only be filed by any person aggrieved by any direction, decision or order passed by the CCI. None of the Appellant(s) can be held to be aggrieved person within the meaning of Section 53B. The word 'aggrieved' connotes direct legal grievance, not the mere displeasure or an indirect legal grievance of the Appellant(s). The person aggrieved ought to refer to a person directly aggrieved by the order. The Appellant(s) being outsider to the proceedings, cannot be held to be aggrieved person. Hence, the Appeal(s) are liable to be rejected on this ground alone. 15. The CCI has followed the statutory process as provided in the Act and the Combination Regulations, 2011. After receipt of notice under Section 6, sub-section (2) on 03.11.2022, the CCI scrutinized the notice and asked the Acquirer to remove certain defects and provide certain clarification and documents. The Commission after receipt of the response to the letters issued to Respondent No.2 to provide documents and clarifications, considered the entire matter in its Meeting dated 09.02.2023 and formed a prima facie opinion that proposed combination is likely t....
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.... participate in the proceedings. The approval of Resolution Plan by the CoC on 28.10.2022, does not affect the jurisdiction of the CCI to examine the notice under Section 6, sub-section (2) of 03.11.2022. 18. The learned Senior Counsel appearing for AGI also contended that none of the Appellant(s) have any locus to file the Appeal(s). The Appellant(s) cannot be said to be aggrieved person within the meaning of Section 53B. The Appellant(s) being not party to combination proceedings have no right to question the order dated 15.03.2022. It is submitted that the CCI is an Expert Body and it having taken the decision after following the due process of law, the Appellate Tribunal shall not substitute its own determination for determination which has been provided by an Expert Body. The information submitted by AGI were information, which were in public domain, which were provided by Resolution Professional of HNG. The RP having examined the Resolution Plan submitted by Respondent No.2 and having found it compliant with IBC Code has placed it before the CoC, which clearly indicates that Respondent No.3 has no objection regarding acquisition by Respondent No.2. Referring to the Appeal ....
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.... (II) Whether Section 29, sub-section (1) contemplates that a Show Cause Notice to be issued to the parties to combination, i.e., both acquirer and the target entity or word 'parties' occurring in Section 29(1) has to be read singularly? (III) Whether non-issuance of Show Cause Notice to HNG vitiates the order of approval granted by the Commission under Section 31, sub-section (1)? (IV) Whether after formation of prima-facie opinion that combination is likely to cause an appreciable adverse effect on competition by the CCI under Section 29, sub-section (1), there was no occasion to form again a prima facie opinion under Section 29(2) after receipt of response to the Show Cause Notice and the CCI was required to complete the further process under Section 29(2) including direction to the parties to the combination to publish details of combination? (V) Whether the process as contemplated under Section 29, sub- section (2) having not been completed by the CCI before passing the order dated 15.03.2023, the order passed by the CCI is against the procedure prescribed under Section 29 and deserved to be set aside? (VI) Whether inspite of Respondent No.....
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.... Respondents, in paragraph 7 of the Appeal, under heading: facts of the case, in sub- paragraph (iv), following has been pleaded: "(iv) As prefaced above, the Appellant herein is an industry body of micro, small and medium scale manufacturers of glass based out of Uttar Pradesh representing the interests of such MSME Glass Manufacturers in Uttar Pradesh. The constituent members of the Appellant operate with at least 35 furnaces installed with currently 27 furnaces operational in Firozabad cluster and 5 lacs people are directly and indirectly involved in the business of the members whose livelihood depend on such employment. The Appellant's business turnover in aggregate stands at Rs. 3000 Crore approx. and annual GST contribution is Rs. 550 Crore. The Appellant shall submit relevant documents in support of this data and information, as and when directed by this Hon'ble Appellate Tribunal." 24. In sub-paragraph 7(vi), the Appellants have further elaborated the consequences of acquisition of HNG by AGI. 7(vi)(h) states as follows: "(h) Merger of Respondent No. 3 with Respondent No. 2 being the largest players in the relevant market would affect product pricing, e....
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....9; in any one of a dozen other statutes, but what is its meaning in this part of this statute?' Accordingly, I only look at the cases to which we have been referred to see if there are general-principles which can be extracted which will guide the court in approaching the question as to what the words 'person aggrieved' mean in any particular statute." If I may say respectfully I fully endorse this approach. I am now in a position to examine the Advocates' Act but before so I must refer to a case near in point to this case, than any considered before." 27. Another Judgment relied upon by Respondent is AIR 1976 SC 578, "Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors". wherein paragraph 48, Hon'ble Supreme Court while considering the Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 25 entitlement of Appellant in that case to file an Appeal made following observations: "48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against ....
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....idering the provisions of the Customs Act, 1962 to file an Appeal to CEGAT, Supreme Court while dealing with Section 129A made following observations: "In the light of this statutory scheme, therefore, it is not possible to agree with the contention of learned counsel for the contesting respondents that sub-section Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 27 (1) of Section 129-A entitles any and every person feeling aggrieved by the decision or order of the Collector of Customs as an adjudicating authority, to prefer statutory appeal to the Appellate Tribunal. Neither the Central Government, through Industries Department, nor the rival company or industry operating in the same field as the importer can as a matter or right prefer an appeal as 'person aggrieved' is wider than the phrase 'party aggrieved'. But in the entire context of the statutory scheme especially sub- section (3) of Section 129-A it has to be held that only the parties to the proceedings before the adjudicating authority Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under S.122 can prefer such an appeal only when directed by the Boa....
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....for enforcement, on the basis of which writ jurisdiction is resorted to. The Court can of course, enforce the performance of a statutory duty by a public body, using its writ jurisdiction at the behest of a person, provided that such person satisfies the Court that he has a legal right to insist on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide State of Orissa v. Madan Gopal Rungta, Saghir Ahmad & Anr. v. State of U.P., Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., Rajendra Singh v. State of Madhya Pradesh and Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar & Ors.)." 31. The above judgements in different context had occasion ....
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....uss the merit or demerits of the logic and rational in the order of CCI, particularly because that could have been questioned by the person really aggrieved. Since we do not see the Appellant as an aggrieved person we do not wish to go into that aspect. Shri Ramji Srinivasan also did not press this point further." 33. Refuting the submissions of the Respondents, Appellant has placed reliance on the judgement of the Hon'ble Supreme Court in "Samir Agarwal Vs. CCI & Ors.", 2021 3 SCC 136. Judgment of the Samir Aggarwal was delivered by the Hon'ble Supreme Court in reference to information submitted by the Appellant to initiate an enquiry under Section 26(2) of the Competition Act, 2002 into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd. (OLA) and Uber India Systems Pvt. Ltd. where Hon'ble Supreme Court has occasion to consider the locus standi. Hon'ble Supreme Court in the case of Samir Agarwal has held that in the context of the Competition Act, the expression a 'person aggrieved' has to be understood widely and not be constructed narrowly as was done in Adi Pherozshah Gandhi. Following observation was made in paragraph 21 and 23: "21. Clearly, theref....
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....18. Duties and functions of Commission.--Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country: Provided further that, the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with any statutory authority or department of Government." 36. The present is a case where Appellants are challenging the order passed by the Commission approving the combination of two biggest market players in container glass industry. It is contended in the Appeal that approval of the combination has been done in breach of the procedure prescribed in the Competition Act. We have noticed the pleading in C.A. (AT) No. 7/2....
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....ructed narrowly. It is further observed that CCI performs inquisitorial, as opposed to adjudicatory functions, the doors of approaching the CCI and the appellate authority, i.e., the NCLAT, must be kept wide open in public interest, so as to subserve the high public purpose of the Act. The Judgment of the Hon'ble Court in 'Samir Aggarwal' was delivered in context of Competition Act, 2002 and in view of the law laid down in 'Samir Aggarwal' and the pleadings of the Appellant (UP Glass Manufacturer Syndicate), we are satisfied that the Appeal filed by the Appellant cannot be thrown out on the ground of locus. Appellant who had filed Letters before the CCI beginning from 07.10.2022 and have been expressing their apprehension of appreciable adverse effect on competition, was also found true by the Commission while issuing show cause notice under Section 29(1). It is appropriate that pleas raised by the Appellant in the Appeal questioning the order of the commission, be considered on merits and answered, instead of throwing the appeal on the ground of locus. We thus reject the objection of the Respondents that none of the Appellants have locus to file the Appeal. We having found the App....
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.... Commission of India has relied on General Clauses Act, Section 13 which provides as follows: "13. Gender and number.-In all 2 [Central Acts] and Regulations, unless there is anything repugnant in the subject or context,- (1) words importing the masculine gender shall be taken to include females; and (2) words in the singular shall include the plural, and vice versa." 43. It is true that as per General Clauses Act words in the singular shall include the plural, and vice versa. There can be no quarrel to the provision of General Clauses Act that words in singular includes plural and vice versa but when we look into the specific purpose and object which is delineated by Section 29(1), in show cause notice to both the parties, we cannot agree with the submission of the CCI that parties in the present case shall only be the AGI who has given notice under Section 6(2). There can be no doubt that Respondent No. 2-AGI who has given notice under Section 6(2) is included within the definition of parties. The show cause notice specifically required to be given to both of them. The statute clearly contemplates issuance of show cause notice to both the parties of the combination. ....
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....formation have been given by Respondent No. 2 in its notice under Section 6(2) of Competition Act which relate both to Respondent No. 2 and Respondent No. 3, non-issuance of notice to target entity i.e. Respondent No. 3 is not to ipso facto vitiate the order of the Commission when Respondent No. 3 has neither any objection nor grievance regarding non-service of notice to Respondent No. 3 and information regarding Respondent No. 3 are all in public domain which has been used by Respondent No. 2 in submitting the notice. We are of the view that by mere non-issuance of notice to Respondent No. 3, the proceedings before the CCI need not be annulled. We thus answer Point No. III, accordingly. Point Nos. IV, V and VI 47. The learned Counsel for both the parties have addressed elaborate submissions on interpretation of Section 29, 30 and 31 as well as Combination Regulations 2011. Before we enter into respective submissions of learned Counsel for the parties, we need to notice relevant provisions of the Act in the above reference. Section 6 deals with 'Regulation of combinations'. Section 6, sub-section (2) oblige any person or enterprise, who purposes to enter into a combination to....
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....ation and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31." 48. Section 30 deals with 'Procedure in case of notice under sub-section (2) of section 6, which is to the following effect: "Procedure in case of notice under sub-section (2) of section 6 30. Where any person or enterprises has given a notice under sub-section (2) of section 6, the Commission shall examine such notice and form its prima facie opinion as provided in sub-section (1) of section 29 and proceed as per provisions contained in that section." 49. Section 31 deals with 'Orders of Commission on certain combinations' is as follows: "Orders of Commission on certain combinations 31. (1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6. (2) Where the Commission is of th....
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.... to any penalty which may be imposed or any prosecution which may be initiated under this Act, the Commission may order that - (a) the acquisition referred to in clause (a) of section 5; or (b) the acquiring of control referred to in clause (b) of section 5; or (c) the merger or amalgamation referred to in clause (c) of section 5, shall not be given effect to: Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order under this sub-section. (11) If the Commission does not, on the expiry of a period of 54[two hundred and ten days from the date of notice given to the Commission under subsection (2) of section 6], pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be deemed to have been approved by the Commission. Explanation - For the purposes of determining the period of 55[two hundred and ten] days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub- section (8) shall be excluded. (1....
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....ch enterprise(s) shall be excluded from the time, not exceeding fifteen working days, provided in sub-regulation (1) of this regulation." 51. Regulation 25 deals with 'Modification to the proposed combination', which also contains an amendment inserted by the Competition Commission of India (Procedure in regard to the transaction of business relating to combinations) Amendment Regulations, 2018, w.e.f. 09.10.2018. Regulation 25 as amended is as follows: "25. Modification to the proposed combination.- (1) Where the Commission is of the opinion that combination has or is likely to have appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination to the parties to such combination. (1A) Along with their response to the notice issued under sub-section (1) of section 29 of the Act, the parties to the combination may offer modification to address the prima facie concerns in the said notice and on that basis, the Commission may approve the proposed combination under sub-section (1) of section 31 of the Act: Provided that in such a ca....
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....facie opinion that combination is likely to cause an AAEC. Consequently, notice under Section 29, sub-section (1) was issued on 10.02.2023. The bone of contention of the parties is as to whether after formation of prima facie opinion under Section 29(1), whether there was any requirement of formation of prima facie opinion at the second time under sub-section (2) of Section 29. Whereas the Appellant(s) pleads that there is no requirement of formation of prima facie opinion at the second time and when notice under Section 29, sub-section (1) has been issued, even after response to the notice, the Commission is required to direct the parties to the combination to publish the details of the combination. The Appellants' contention is that Section 29, sub-section (2), insofar as it directs for publishing the details of the combination having not been complied, the statutory procedure has not been complied by the Commission, resulting in vitiation of the order approving the combination dated 15.03.2023. The contention of the CCI and other Respondents is that formation of prima facie opinion is required at the second stage as per Section 29 sub-section (2), when response is received to th....
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....of Section 31 of the Act. The above Regulation clearly contemplates that even before forming opinion under Section 29, sub-section (1), if the parties submit a modification and the Commission is satisfied, combination can be approved under Section 31, sub-section (1), without proceeding any further. 55. We have looked into the cases decided by the Competition Commission of India to find out the procedure, which was adopted by the Commission to decide cases by the Competition Commission of India, which indicate that after issuance of show-cause notice under Section 29, sub- section (1), the Commission has proceeded to form a prima facie opinion at the second stage as contemplated under Section 29, sub-section (2). We may refer to Combination Registration No.C-2016/05/400 decided on 8th June, 2017, where after issuance of a show-cause notice under Section 29, sub-section (1), the Commission formed a prima facie opinion under Section 29, sub-section (2) and thereafter directed the parties to publish details of the combination. Paragraph 21 of the judgment is referred in this context: "21. The response to the SCN was received on 20th February, 2017, which was subsequently a....
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....erms of communication under Regulation 19(3) of the Combination Regulations and noted that submissions of the Parties, contesting the AAEC concerns expressed by the Commission in SCN, do not allay the said concerns. The Parties also proposed certain divestments in relation to helium and bulk markets along with the Response to SCN and submitted that the same would eliminate all the primary concerns raised by the Commission. In this regard, the Commission noted that the divestments relating to helium market were offered by the Parties in other jurisdictions and the same were yet to be accepted by said authorities. The divestment related to the bulk markets, prima facie, did not address all the AAEC concerns raised by the Commission in the SCN. Accordingly, the Commission was of the view that the divestments proposed in the Response to SCN cannot be accepted and competition concerns, as raised in SCN, continue to exist. 13. In view of the above, in accordance with Section 29(2) of the Act read with Regulation 22 of the Combination Regulations, the Commission decided to issue a direction to the Parties to publish details of the Proposed Combination within ten working days of t....
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....n accordance with Section 31 of the Act. 71. A combined reading of the procedure under Section 29 of the Act, the orders and modifications that could be ordered / accepted under Section 31 of the Act and the statutory time period provided for inquiry, suggest that it would not be appropriate for the parties to the combination to submit new evidences after the stage contemplated under Section 29(5) of the Act, particularly after the issuance of proposal for modifications under Section 31(3) of the Act. The period of 45 days provided under Section 29(6) of the Act, is to assess the material on record including the submissions already given by parties, competitors and other stakeholders regarding the proposed combination. If the parties or other stakeholders fail to provide their views / objections within the respective stages under Section 29(1), (3), (4) and (5) of the Act, it is not open for them to adduce new material / evidence during the 45 days given to the Commission under Section 29(6) of the Act. If one contemplates otherwise, the combination inquiry would be a never ending process without any finality." 60. On the other hand, there are cases of the Commission, w....
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....ther judgment in this context is - Combination Registration No.C- 2016/08/424 decided on 16.05.2017, where a show-cause notice was issued on 14.04.2017. Along with response, the Acquirer filed a voluntary remedy proposal and after considering the remedy addressed by the notice, the Commission approved the combination without proceeding any further under Section 29, sub-section (2). In paragraph 9, the facts have been noted to the following effect: "9. Based on assessment of information available on record, the Commission, in its meeting held on 21st April, 2017, observed that there are prima facie competition concerns, as discussed in subsequent paragraphs, in relation to the Proposed Combination and therefore, decided to issue a show cause notice ("SCN"), under sub-section (1) of Section 29 of the Act, to the Acquirer. Accordingly, SCN dated 24th April, 2017 was issued to the Acquirer, directing it to respond, in writing, within thirty days, as to why investigation in respect of the Proposed Combination should not be conducted. The Acquirer filed response to the SCN on 13th May, 2017 ("Response to SCN"), along with a voluntary remedy proposal ("Remedy Proposal")." 64. ....
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.... 30 of the act contended that Section 30 requires that after any person or enterprise has given a notice under sub-section (2) of Section 6, the Commission shall examine such notice and form its prima facie opinion as provided in sub- section (1) of 29, the Commission is to proceed as per the provisions contained in Section 30. It cannot be read to mean that after forming prima facie opinion under Section 29, sub-section (1), the Commission has to necessarily complete all process required under Section 29, i.e., under Section 29, sub-section (2) and other sub-sections. Section 30 and Section 29 have to be read harmoniously to give effect the provisions of the Act. Section 30 cannot be read to mean that even if, prima facie opinion at the second stage is not formed by the Commission, the Commission should direct publication of details of the combination. The submission of the Appellant on the strength of Section 30, thus, cannot be accepted. Point Nos. VII and VIII 67. The contentions advanced by the learned Counsel for the Appellant is that even the modification suggested by Respondent No.2 do not adequately address the AAEC and the Commission has not adequately examined the sai....
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....atutory Body, which in the present case is performing not an adjudicatory function, rather, is exercising inquisitorial function. The Hon'ble Supreme Court in Competition Commission of India vs. Steel Authority of India Limited and Anr. has held that the Competition Commission of India performs various functions including regulatory, inquisitorial and adjudicatory. The functions, which have been exercised by the Commission in the present case are clearly inquisitorial functions. The decision of the Expert Body is not lightly to be interfered by the Courts and the Appellate Authorities is a well-established principle. We may refer to the judgment of the Hon'ble Supreme Court in (2017) 5 SCC 262 - Union of India and Ors. vs. Cipla Limited and Ors., where the Hon'ble Supreme Court relied on the conclusions by a Constitution Bench of the Hon'ble Supreme Court and observed that when a power is given to an Expert Body to determine a question of law and fact, the same is generally treated as final. In paragraph 104 and 105, following was laid down: "104. Be that as it may, our conclusion on this aspect of the matter is that the antecedent materials (the Reports) on the basis of w....
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.... Picture Houses Ltd. v. Wednesbury Corpn., (1948) 1 KB 223 : (1947) 2 All ER 680 (CA)] )" (emphasis supplied) This view was reaffirmed in para 58 of the Report in the following words: (SCC p. 256) "58. Price fixation is not within the province of the courts. Judicial function in respect of such matters is Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 66 exhausted when there is found to be a rational basis for the conclusions reached by the authority concerned. As stated by Justice Cardozo in Mississippi Valley Barge Line Co. v. United States [Mississippi Valley Barge Line Co. v. United States, 292 US 282 at pp. 286-87 (1934) : 78 L Ed 1260 : 1934 SCC OnLine US SC 103] : (SCC OnLine US SC para 6) '6. ... The structure of a rate schedule calls in peculiar measure for the use of that enlightened judgment which the commission by training and experience is qualified to form. ... It is not the province of a court to absorb this function to itself. ... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.'" (emphasis supplied)" 71. The above is also another reason, wh....
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.... in which participation of others including Members of the pubic and other parties have to be allowed. We have noticed that Regulation 19, sub-regulation (3) empowers the Commission to call for information from any other enterprise while inquiring as to whether a combination has caused or is likely to cause an appreciable adverse effect on competition in India. Thus, although the Commission is empowered to invite information, the scheme does not entitle any other person other than those who have given notice to participate in the proceedings. The right of participation of public in general and other entities arises when under Section 29, sub-section (2) of the Act, the Commission directed the parties to the combination to publish the details of the combination within seven days from of such direction, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected. The stage for filing any objection or giving any information by public in general including the Appellant - UPGMS can arise only when details of the combination are published under Section 29, sub-section (2). We have already noticed that in the present case, stage....
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....ssion is of the opinion that no hearing may be required in the matter. 8. As regards the request to not consider, deliberate, accept, and admit any application or notice or documents filed by AGI until adjudication of the applications filed in the Hon'ble NCLT/Appellate Tribunal, it is noted that the subject matter of the references filed with the Hon'ble NCLT/ Appellate Tribunal relate to resolution proceedings and do not have any bearing on competition assessment. Further, as stated above, the review of combinations is strictly time bound exercise and accordingly no matter can be kept in abeyance for reasons of any parallel proceedings before other authorities. Accordingly, this request of UPGMS cannot be acceded to. 9. As regards the request to initiate Section 39 proceedings against AGI and afford an opportunity to UPGMS to file objections under Section 29(3) of the Act and treat the letter filed as an application under Section 29 of the Act read with Sections 19 and 35 of the Act, it may be noted that the initiation of proceedings under Section 29 of the Act is to be based on the Commission's own assessment. The submissions of objections under Section 29(3) i....
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....ion 14(7) states the powers and functions, which are vested with the Secretary of the Commission to ensure timely and efficient disposal of the matter and for achieving the objectives of the Act. Under Regulation 14(7)(f) the Secretary of the Commission is required to serve notice of the date of ordinary meeting of the Commission to consider the information or reference or document to decide if there exists a prima facie case and to convey the directions of the Commission for investigation, or to issue notice of an inquiry after receipt and consideration of the report of the Director General. In other words, this provision talks of issuing a notice for holding an ordinary meeting of the Commission. This notice is intended to be issued only to the members of the Commission who constitute "preliminary conference" as they alone have to decide about the existence of a prima facie case. Then, it has to convey the direction of the Commission to the Director General. After the receipt of the report of the Director General, it has to issue notice to the parties concerned." 78. Cumulative reading of these provisions, in conjunction with the scheme of the Act and the object sought to be a....