TaxTMI 
TaxTMI 
2018 (4) TMI 2005
X X X X Extracts X X X X
X X X X Extracts X X X X
...., 2018/8th February, 2018 passed by the Competition Commission of India (hereinafter referred to as "Commission") in Case Nos. 07 and 30 of 2012. 2. By the impugned order, out of 25 alleged violations of Section 4 of the Act, by the majority of four Hon'ble Members given clean chit in respect to 22 allegations but certain observations and findings have been recorded against the Appellant in respect of the rest three allegations, relevant of which reads as follows: "420. In view of the discussion in the preceding paras, the Commission holds that Google enjoys dominant position in Online General Web Search and Web Search Advertising Services markets in India. The Commission further holds Google to have abused its dominant position on the following three counts: (a) Ranking of Universal Results prior to 2010 which was not strictly determined by relevance. Rather the rankings were pre-determined to trigger at the 1st, 4th or 10th position on the SERP. Such practice of Google was unfair to the users and was in contravention of the provisions of Section 4(2)(a)(i) of the Act. (b) Prominent display and placement of Commercial Flight Unit with link to Google's specialised search o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5.86 Crore (Rupees One Hundred Thirty-Five Crore and Eighty-Six Lakh only) upon Google for infringing anti- trust conduct and directed the Appellant to deposit the penalty amount within 60 days. 5. The two Hon'ble Members including, the Hon'ble Member (J) gave their dissenting finding (minority decision) and held as follows: "It is important to note that each and every clause of sub-section (2) of Section 4 of the Act uses words or operatives to reflect abuse. For instance, Section 4(2)(a) (i) uses "imposes unfair or discriminatory condition in purchase or sale of goods or services". Similarly, clauses 4(2) (b), (c), (d) and (e) emphasise on other abuses with operatives such as "limits or restricts", "indulges in practice or practices resulting in denial of market access", "makes conclusion of contract", "uses its dominant position ... to enter into, or protect ...". Thus, a dominant player will be guilty of abuse only in the presence of proof of such behaviour as emphasised in the operatives used in these clauses. It goes without saying that the onus is on the Commission to establish from the evidence on record that there is either an imposition of unfair or discriminatory cond....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aring on the question of passing of interim order. 7. Learned Senior Counsel appearing on behalf of the Appellant submitted that the Commission erred in law because it neither claimed nor referred to any evidence that Google unfairly impose or compelled users to take 'search services' by its manner of display of the 'Flights Unit'. According to him, the 'Flights Unit' provides users with an additional option (for free) that they can choose to click on any if they wish. There is no unfair imposition or compulsion. 8. It was further submitted that the Commission failed to identify any evidence of competitive harm, as it was required to establish a contravention of Section 4(2)(a)(i) of the Act. It failed to notice that the Flight Unit does not receive "unduly" prominent placement on the page. The Commission does not dispute that the Flight Unit displays directly relevant, real-time information about flights in response to user queries about flights entered on Google. 9. According to the Appellants, the Commission wrongly disregarded that Google legitimately displays the 'Flight Unit' above its free results and marks it as "Sponsored" as part of its ad-funded business model. This i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....laimer- this Link leads to Google Page". A sample copy was handed over, impression of which is as follows: 17. In reply, learned Senior Counsel for the Appellant referred another document relating to Google Flights, a copy of which is extracted below. It was submitted that the data's are based on about 17,60,000 results showing flight from New Delhi to Cape Town, South Africa, wherein reference of www.google.co.in/flights have been mentioned. It was brought to our notice that if the website is open, it reflects the 'Google Flights'. The website already shows that time and cost of Flight shown are 'Google Flight' and therefore, the question putting any disclaimer does not arise. 18. Learned counsel appearing on behalf of the Commission requested not stay the impugned order, as otherwise it will amount to grant of final relief by way of interim order. 19. We have heard learned counsel appearing on behalf of the Appellants, Informant (2nd Respondent) and the Commission and perused the records and the impugned judgment. 20. From the majority decision of four Hon'ble Members, we find that out of twenty-five allegations, three allegations have been held to be proved. In respect of wh....