TaxTMI 
TaxTMI 
2025 (4) TMI 669
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 2018, the petitioner company is seeking inter alia quashing of the proceedings of Case No. 77 of 2016 with Reference Case No. 4/2016 registered with the Competition Commission of India (herein after referred to as the CCI) and the impugned Order dated 06.12.2016 passed by the CCI under Section 26 (1) of the Competition Act, 2002 (herein after referred to as the said Act, 2002) and the impugned Order dated 08.08.2018 passed by the CCI rejecting the application seeking review/recall of the Order dated 06.12.2016 passed by the CCI on 08.09.2016 and 15.09.2016 respectively filed by the petitioner. 3. Whereas, in WP(C) No. 6342/2018, the writ petitioner company is assailing the impugned Order dated 27.08.2018 passed by the CCI in Case No. 77/2016 with Reference No. 4/2016 imposing a penalty of Rs. 5,00,000/- (Rupees Five Lakhs) under Section 43 of the said Act, 2002 to the petitioner for non-compliance with the direction of the Director General pursuant to the impugned Order dated 06.12.2016, which is the subject matter in WP(C) 6343/2018. 4. Both the writ petitions are taken up together for hearing as the consequential action of the CCI in levying penalty upon the petitioner co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eral was also directed to investigate the role, if any, of other persons who were in charge of and were responsible for the alleged conduct of the petitioner or with his consent or connivance, the alleged conduct of the petitioner company took place. 9. After almost one year since the aforesaid order was passed, the Joint Director General issued a Notice on 08.12.2017 under Section 36 (2) read with Section 41 (2) of the said Act, 2002, whereby the petitioner company was directed to furnish various information as called for in the said notice. Pertinent that the Order dated 06.12.2016 however was not furnished to the petitioner company, despite the same is said to have been annexed with the said notice. 10. By letter dated 19.12.2017, the petitioner company requested the CCI to provide with additional details and till date the said details are not furnished, the timeline for submission of the requisite information be extended. 11. Thereafter, the petitioner company was served with the impugned Order dated 06.12.2016 passed by the CCI. 12. Accordingly, on 30.05.2018, the petitioner company filed an application for review and recall of the said impugned Order dated 06.12.2....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eto shall get attracted. He further submits that as such, before issuing direction under Section 26 (1) of the said Act, 2002, the CCI must be of the opinion that there exist a prima facie case and any action taken without the fulfillment of the aforesaid pre-condition, shall be totally illegal and void ab initio. 19. He accordingly submits that the impugned Order dated 06.12.2016 and Review Order dated 08.08.2018 are wholly illegal and without jurisdiction and thereby warrants setting aside and quashing thereof. 20. He further submits that the consequent penalty imposed upon the petitioner company as such is unwarranted. 21. Mr. T.J. Mahanta, learned Sr. Counsel for the respondent Nos. 1, 4 and 5 on the other hand submits that the instant writ petition is not maintainable, inasmuch as, the writ petition is pre-mature and the investigation directed by the CCI Authorities is based on a prima facie opinion without involving an adjudicatory process and once the Director General submits the final report, the same can be appealed before the National Company Law Appellate Tribunal under Section 53-A of the said Act, 2002. In reliance of the aforesaid submission, he relies upon t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpany) along with other cement manufacturers in the North-East region, caused an inquiry into the alleged contravention of the provisions contained in sub-section (1) of Section 3 formed a prima facie opinion under Section 26 (1) of the Act and directed the Director General to cause an investigation into the matter. (ii) Order dated 08.08.2018 vide which the CCI rejected the petitioner's application seeking a review and recall of the above mentioned Order dated 06.12.2016. 27. The consequent order under challenge in WP(C) No. 6342/2018 is:- (i) Order dated 27.08.2018 passed by the CCI imposing penalty to the tune of Rs. 5,00,000/- (Rupees Five Lakhs) under Section 43 of the said Act, 2002 against the petitioner company for non-furnishing information as sought by the Director General for the purpose of conducting the investigation as directed by the impugned Order dated 06.12.2016. 28. It appears that the said impugned Orders dated 06.12.2016 and 08.08.2018 were triggered by information received from respondent No. 2 and reference from the Govt. of Assam and that the information as alleged in the said letters were that there had been cartelization amongst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t was accepted by the independent nations with mature industrialized economics as one element in the project of economic integration. The immediate goal of the project was to promote economic prosperity and was ancillary to its fundamental political purpose, which was "to substitute for age old rivalries, the merging of essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts". Pertinent that the same can be traced in two major documents, the Schuman Plan and Spaak Report. 33. After independence, India followed a centrally planned economy, thereby vesting all the power to make economic decision upon the public sector and the Government. This model was known as the Nehruvian Socialism Model (Mixed Economy Model), also known as "Command and Control" economy. It was a mid way between an extreme market economy and socialist economy. Both the private and public sector were co-existing but there was more restriction, control and supervision on the private sector. Public sector businesses were also failing miserably and the Government was burden with debt and the restriction on the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er recommendations. This is how the MRTP Act was repealed and the said Act of 2002 was passed and brought into force w.e.f. 31.03.2003. 35. Apt to reproduce hereunder, the statements and objects and reason of the said Act, 2002 for ready reference:- "The Monopolies and Restrictive Trade Practices Act, 1969 has become obsolete in certain respects in the light of international economic developments relating more particularly to competition laws and there is a need to shift our focus from curbing monopolies to promoting competition. 2. The Central Government constituted a High Level Committee on Competition Policy and Law. The Committee submitted its report on the 22nd May, 2000 to the Central Government. The Central Government consulted all concerned including the trade and industry associations and the general public. The Central Government after considering the suggestions of the trade and industry and the general public decided to enact a law on Competition. 3. The Competition Bill, 2001 seeks to ensure fair competition in India by prohibiting trade practices which cause appreciable adverse effect on competition in markets within India and, for this p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....quired to lay the annual accounts of the Commission, as audited by the Comptroller and Auditor-General and also the annual report of the Commission before both the Houses of Parliament. 8. The Bill aims at repealing the Monopolies and Restrictive Trade Practices Act, 1969 and the dissolution of the Monopolies and Restrictive Trade Practices Commission. The Bill provides that the cases pending before the Monopolies and Restrictive Trade Practices Commission will be transferred to the CCI except those relating to unfair trade practices which are proposed to be transferred to the relevant fora established under the Consumer Protection Act, 1986. 9. The Bill seeks to achieve the above objectives. Statement of Objects and Reasons of Amendment Act 39 of 2007- The Competition Act was enacted in 2002 keeping in view the economic developments that have resulted in opening up of the Indian economy, removal of controls and consequent economic liberalization which required that the Indian market be geared to face competition from within the country and outside. The Competition Act, 2002 provided for the establishment of a Commission to prevent practices havi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....competition within India. (2) Any agreement entered into in contravention of the provisions contained in sub-section (1) shall be void. (3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identical or similar trade of goods or provision of services, which- (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way;" 39. Section 4 of the said Act, 2002 is quoted hereunder for ready reference:- "4. Abuse of dominant position.-[(1) No enterprise or group shall abuse its dominant position.] (2) There shall be an abuse of dominant position [under sub-section (1)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on (1) of Section 3 or sub-section (1) of Section 4 either on its own motion or on- (a) [receipt of any information, in such manner and] accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or (b) a reference made to it by the Central Government or a State Government or a statutory authority. (2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7). (3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under Section 3, have due regard to all or any of the following factors, namely:- (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (c) foreclosure of competition by hindering entry into the market; (d) accrual of benefits to consumers; (e) improvements in production or distribution of goods or provision of services; or (f) promotion of technical, scientific and economic dev....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (a) physical characteristics or end-use of goods; (b) price of goods or service; (c) consumer preferences; (d) exclusion of in house production; (e) existence of specialised producers; (f) classification of industrial products." 41. Section 26 of the said Act, 2002 is quoted hereunder for ready reference:- "[26. Procedure for inquiry under Section 19.---(1) On receipt of a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information received under Section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under Section 19, the Commission is of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ance with the provisions of this Act.]" 42. Section 27 of the said Act, 2002 is quoted hereunder for ready reference:- "27. Orders by Commission after inquiry into agreements or abuse of dominant position.- Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:-- (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be; [(b) impose such penalty, as it may deem fit which shall be not more than ten per cent. of the average of the turnover or income, as the case may be, for the last three preceding financial years, upon each of such person or enterprise which is a party to such agreement or has abused its dominant position: Provided that in case any agreement referred to in section 3 has been entered into by a cartel, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal against any finding of the Commission or under section 42A or under sub-section (2) of section 53Q of this Act, and pass orders for the recovery of compensation under section 53N of this Act.]" 44. Perusal of the aforesaid provisions indicates that an 'Agreement' means any kind of arrangement or understanding or action whether or not in writing. It further appears that in order to constitute a 'cartel', it includes the association of seller/distributor/manufacturer who by agreement amongst themselves limit, control or attempt to control the production, distribution, sell or price of, or trade in goods or provisions of services. 45. It further appears that the CCI is empowered to conduct enquiry into certain agreements and dominant possession of enterprise upon receipt of any information as provided under Section 19 of the said Act, 2002. However, it appears that under Section 26 (1) of the said Act, the CCI before directing the Director General to cause an investigation, has to form an opinion on the basis of the information received t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r group or person, the CCI shall direct the Director General to cause an investigation to be made into the matter. This is consonance with the statements and objects of the said Act, 2002. 47. Pursuant such inquiry, Section 27 of the said Act, 2002 confers the CCI to pass appropriate directions/orders of penalty etc. for contravention of the provisions contained under Section 3 or Section 4 of the said Act, 2002, as the case may. 48. Section 53A of the said Act, 2002 stipulates the order or decision passed by the CCI which are appealable before the appellate Tribunal i.e. the National Company Law Appellate Tribunal (NCLAT). Apparent thus, that the orders passed by the CCI after inquiry into agreement or abuse of dominant position, is appealable under the said provision. However, the order of the CCI directing the Director General to investigate as provided under Section 26 (1) of the said Act, 2002 is not included in the said list of appealable orders. As such, such orders of the CCI directing the Director General to investigate, which is the order impugned in the present writ petition is not an appealable order under the provision of Section 53A of the said Act, 2002. 49.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....who may or may not be in the cartel soon follow with price hikes. We enclose herewith cash memos documenting market price of cement of the three respondent companies as of end August 2016, which clearly demonstrates that the price of all three companies are exactly the same i.e Rs 360/=(Rupees three hundred and sixty only) per bag of 50 kgs. This also documents a Rs 40/-(Rupees forty only) hike in price during the month of August 2016 and that too by exactly the same amount by all three respondent companies. The other smaller companies are now following suit with similar unfair increases in market price without any justifying reason other than cartelisation. This has loaded an additional burden of 20% to housing costs affecting the interests of a large segment of the population across the region. The petitioner being a consumer Association is therefore highly aggrieved by such acts. 6. We beg to bring to the notice of the Commission that the respondents are also transporting their products to distant regions and selling the same goods manufactured in the North East at a much lower price in neighbouring States. We have collected data from our CREDAI chapters in Siliguri(Ass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....level. All India as well as regional level and there is understanding between all India as well as local brands. Prevailing retail market price of All India brands in Guwahati:- Ambuja Rs per bag Lafarge Rs per bag ACC Rs per bag Ultratech Rs per bag 380/- 380/- 380/- 380/- 10. The North East is a notified backward region of India and the highest cement price illegally enforced by the cartels of the respondents have, besides fleecing the consumers been a severe drain on national resources both in terms of subsidy payouts, as well as the increased cost of all infrastructure projects. 11. Under the circumstances the petitioner begs to makes the following humble prayers both in public as well as in national interest:- (a) It is humbly prayed that your honour would be pleased to initiate proceeding against the respondents as per the Competition Act 2002. (b) Until such time as this matter is not disposed off by your honour, direct the respondents to maintain a price range not more than the price being charged in Siliguri, which is Rs 250/- (Rupees two hundred and fifty only) per bag delivered at site. Money receipts d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r respective brands of cement by an amount ranging between Rs. 20/- to Rs 40/- per bag, clearly indicating an anti-competition agreement under Section 3 (3) (a) of the Act. This apart, these three aforementioned companies also resorted to reduction in post invoice trade discount in such a manner from 17/08/2016 onwards that there is net increase of about Rs. 40/- per bag of cement. This may be illustrated by the evidence given below in regard to the net sale prices of their cement in Guwahati, collected with great difficulty as the companies as well as the dealers have not cooperated, refusing to give copies of the bills :- 1. M/s. Calcom Cement India Ltd. (Dalmia Brand) billed a bag of cement for Rs. 347/- on 16/08/2016. This was increased to Rs. 375/- per bag on 17/08/2016. (The details of movement of prices between 1/08/2016 and 30/08/2016 has been shown in Annexure I enclosed herewith which is supported by relevant Invoices in Annexure II.) 2. M/s. TOPCEM India (Topcem Brand) billed a bag of cement for Rs. 325/- on 16/08/2016. This was increased to Rs. 365/- per bag on 17/08/2016. Similarly the MRP of a bag of cement which was Rs. 345/ on 16/08/2016 w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e to pay such VAT; and in addition, as mentioned above, the cement manufacturers have to incur substantial transportation costs for carrying cement from Assam to West Bengal. The pricing data given above, therefore, clearly establishes cartelization. To further substantiate our point of view, we would like to submit that the input cost of cement, transportation, electricity duty, labour costs etc have remained unaltered for last six months to one year. Further, in respect of demand-supply issue, the supply is found to be more or equal to the demand of the state and other parts of India and North Eastern states. Moreover, due to local availability of raw material and close proximity to market, the logistical costs for both raw materials and finished goods are also substantially lower for the local cement manufacturing companies vis-a-vis the out-of-state manufacturing companies, with the local cement manufacturers also reaping the benefits of substantial tax incentives and other subsidies as mentioned earlier. In spite of all such favourable factors the consumers of the State have been forced to pay higher prices of cement compared to the other states. It is furthe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ised prices of their respective brands of cement in tandem on 17.08.2016. From the price data submitted, as compiled from the tax invoices of OPs during different dates in the month of August, 2016, it is observed that on 17.08.2016, OP 1 has raised the net sale price of per bag of cement from Rs. 345/- to Rs. 366/-, OP 2 has raised the net sale price of per bag of cement from Rs. 325/- to Rs. 365/-, and OP 3 has raised the net sale price of per bag of cement from Rs. 347/- to Rs. 375/-, (ii) OPs are selling cement at lower prices in the neighbouring states compared to the North Eastern states. From the cement prices data collected from CREDAI chapters in Kolkata, Siliguri, Ranchi and Patna as stated in the information, it is observed that the OPs are charging higher prices per bag of their respective brands of cement in North Eastern states as compared to the neighbouring states despite incurring additional costs for transportation of cement to those states. From the informations, it is observed that on 16.08.2016, the billing price of a bag of cement of OP 2 was Rs. 310/- in Siliguri whereas it was Rs. 325/- in Guwahati. Similarly, the billing price of a bag of cement of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ifle competition in the market through the above said collusive practices, have indulged in anti-competitive activities in violation of the provisions of Section 3 (3) read with Section 3 (1) of the Act." 53. Reading of the impugned Order dated 06.12.2016 makes it apparent that the Director General has been directed to cause an investigation wherein no right of the parties is adjudicated. However, the basic requirement under the provisions of Section 26 (1) of the said Act, 2002 requires the CCI Authorities to form a 'prima facie' opinion as regards existence of anti competitive activities in violation of the provision of Section 3 and/or 4 of the said Act, 2002 before directing investigation into the matter. Therefore, the mandate of law is that it is mandatory for the CCI to arrive at a prima facie opinion upon reading the information received as whether if the said information is taken on its face value, to be true, the provisions of Section 3 and/or Section 4 of the said Act, 2002 are being contravened or not. Therefore, an investigation cannot be directed by the CCI mechanically and/or in a routine manner. Though the CCI is not required to conduct a mini trial or determine ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mited & Others reported in (2019) 2 SCC 521, wherein the Apex Court was considering the question as to whether a writ petition challenging the order passed under Section 26 (1) of the said Act, 2002 was maintainable. 57. Para 115 - 120 of the said decision is reproduced hereunder for ready reference:- "115. Here comes the scope of judicial interference under Article 226 of the Constitution. As per the RJIL as well as CCI, the High Court could not have entertained the writ petition against an order passed under Section 26 (1) of the Competition Act which was a pure administrative order and was only a prima facie view expressed therein, and did not result in serious adverse consequences. It was submitted that the finding of the High Court that such an order was quasi-judicial order is not only erroneous but it is contrary to the law laid down in SAIL14. The respondents, on the other hand, have submitted that the judgment in the above case had no application in the instant case as it did not deal with the sector that is regulated by a statutory authority. Moreover, such an order was quasi-judicial in nature and cannot be treated as an administrative order since it was pass....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion or order passed on merits by the Commission, it is expected that the same would be supported by some reasoning. At the stage of forming a prima facie view, as required under Section 26 (1) of the Act, the Commission may not really record detailed reasons, but must express its mind in no uncertain terms that it is of the view that prima facie case exists, requiring issuance of direction for investigation to the Director General. Such view should be recorded with reference to the information furnished to the Commission. Such opinion should be formed on the basis of the records, including the information furnished and reference made to the Commission under the various provisions of the Act, as afore-referred. However, other decisions and orders, which are not directions simpliciter and determining the rights of the parties, should be well-reasoned analysing and deciding the rival contentions raised before the Commission by the parties. In other words, the Commission is expected to express prima facie view in terms of Section 26 (1) of the Act, without entering into any adjudicatory or determinative process and by recording minimum reasons substantiating the formation of such opin....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... absence of such fact, the court has no jurisdiction to proceed on the basis that the Rent Act is not applicable. The learned counsel is right. The fact as to "paid-up share capital" of a company can be said to be a "preliminary" or "jurisdictional fact" and said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable. The question, however, is whether in the present case, the learned counsel for the appellant tenant is right in submitting that the "jurisdictional fact" did not exist and the Rent Act was, therefore, applicable. 27. Stated simply, the fact or facts upon which the jurisdiction of a court, a tribunal or an authority depends can be said to be a "jurisdictional fact". If the jurisdictional fact exists, a court, tribunal or authority has jurisdiction to decide other issues. If such fact does not exist, a court, tribunal or authority cannot act. It is also well settled that a court or a tribunal cannot wrongly assume existence of jurisdictional fact and proceed to decide a matter. The underlying principle is that by erroneously assuming existence of a jurisdictional fact, a subordinate court or a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....PC for quashing FIR/complaints, parameters of which has been well settled by the Apex Court in the case of State of Haryana & Others Vs. Bhajan Lal & Others, reported in (1992) Supp (1) SCC 335. 61. The relevant portion of the State of Haryana & Others Vs. Bhajan Lal & Others (Supra) is reproduced hereunder for ready reference:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first informat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s hereinabove, what is relevant to be seen is that, if the information received by the CCI even if taken at its face value, then, whether there exist some 'agreement' or 'understanding' between the various cement manufacturers including the petitioner company to determine the price of cement in contravention of Section 3 and/or 4 of the said Act, 2002. 64. The sum and substance of the information received under Section 19 (1) (b) of the said Act, 2002 regarding cartelization by the cement manufacturing companies in Assam in contravention of Section 3 of the said Act, 2002 are as follows:- i) Three cement manufacturing companies in Assam, namely, M/s Calcom cement India Limited (Dalmia Brand), M/s TOPCEM India (Topcem Brand) and M/s Star Cement Limited (Star Brand i.e. petitioner company), which together have a market share of 60% in Assam have suddenly increased the price of cement substantially through cartelization without any corresponding increased like limestone, clinger, fly ash etc. ii) In spite of stable in put cost and no demand supply mismatch, these three cement manufacturing companies formed a cartel in August 2016 and all of them increased their bi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ces per bags for their respective brands compared to the prices at which they were selling same bags of cement in the neighbouring States such as West Bengal, Bihar etc. and thereby the three companies were alleged cartelization in the determinations of sale price of cement and limiting of production of cement in North Eastern States in contravention of the provisions of Sections 3 (3) (a) and 3 (3) (b) of the said Act, 2002. 66. In fact, in the review Order dated 08.08.2018, the CCI in paragraph No. 4 stated as under: "In Reference Case No. 04 of 2016, it has been alleged that the Ops had formed cartel and suddenly increased the prices of their respective brands of cement substantially in the month of August, 2016 in Assam. It was further averred that despite stable input costs and no demand-supply mismatch, Ops have increased their billing prices per bag by an amount ranging between Rs. 20 to Rs. 40." 67. Thus, it appears that the three cement companies were alleged to have formed a cartel for increasing of sale price of cement per bag, which was by an amount ranging between Rs. 20/- to Rs. 40/-. In fact in the impugned Order dated 06.12.2016 in paragraph No. 6(i) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ors could not have a basis for forming an opinion by the CCI about the existence of a prima facie case of the contravention of Section 3 (3) (a) and Section 3 (3) (b) of the said Act, 2002. 69. The second allegation that the three cement companies were availing huge subsidy under NEIPP for cement production in North Eastern States and were not passing on the benefits of the same to the consumers is not a ground at all which falls under Section 3 (3) (a) and Section 3 (3) (b) of the Act, 2002, inasmuch as, the subsidy which are given for establishment of new Industries in this region is by way of an incentive and the same is not to pass to the consumers as has been held by the Divisional Bench of this Court in the case of PVR Ltd. Vs. State of Assam & Ors, reported in (2017) 5 GLR 117. Therefore, I am of the considered view that such allegations also cannot be considered to have an adverse effect on competition and thereby, the direction under Section 26 (1) of the said Act, 2002, issued by CCI, is not tenable. 70. The third allegation that the three cement companies were selling the cement at a higher price in the North-Eastern Region then at a lower price in the other States....