CLC-CCI Moot Court on Competition Law, 2019

Place: CAMPUS LAW CENTRE, UNIVERSITY OF DELHI,

NORTH CAMPUS, CHHATRA MARG, DELHI-110007

PG Pacedena Private Limited (“PG”) and Others

…APPELLANTS

VERSUS

Competition Commission of Pacedena (“CCP”) and Another

…RESPONDENTS

Most Respectfully Submitted before the Hon’ble Chairperson

and the members of the National Company Law Appellate Tribunal

MEMORIAL FILED ON BEHALF OF : APPELLANT

COUNSEL APPEARING ON BEHALF OF: APPELLANT
 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI

CIVIL APPELLATE JURISDICTION

APPLICATION NO OF FEB, 2019

(UNDER SECTION 53B OF THE COMPETION ACT, 2002)

PG Pacedena Private Limited (“PG”) …APPELLANT NO.1

Qui Pacedena Private Limited (“Qui”) …APPELLANT NO.2
Tam Pacedena Private Limited (“Tam”) …APPELLANT NO.3
Trade Association …APPELLANT NO.4

VERSUS

Competition Commission of Pacedena (“CCP”) …RESPONDENT NO.1

Pacedena National Railways (“PNR”) …RESPONDENT NO.2

Appeal on behalf of the Appellant

Counsel for Appellant

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 CLC-CCI Moot Court on Competition Law, 2019 .
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TABLE OF CONTENTS

Index of Abbreviations…………………………………………………………………….…4

Index of Authorities…………………………………………………………………………..6

Statement of Jurisdiction……………………………………………………………………..8

Statement of Facts……………………………………………………………………………9
.
Issues Raised………………………………………………………………….……………...13

Summary of Arguments……………………………………………………………………...14

Arguments Advanced/Pleadings……………………………………………………… …….15

Final Submission/Prayer………………………………………………………………..……25

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 CLC-CCI Moot Court on Competition Law, 2019 .
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INDEX OF ABBREVIATIONS

& And
S. Section
CCP Competition Commission of Pacedena
DG Director General
AIR All India Reporter
PG PG Pacedena Private Limited

Qui Qui Pacedena Private Limited

TAM Tam Pacedena Private Limited

PNR Pacedena National Railways

R/W read with
W.R.T. with respect to
CTR Current Tax Reporter Co. Company
DCIT Deputy Commissioner of Income Tax Del Delhi
DIT Department of Income Tax
DTR Direct Tax Reports
Dy. Deputy
ed. Edition

Fed. Federal II

Id. Ibidem
ACT Competition Act, 2002
ATA Antitrust Appeal
DEL Delhi
Ltd. Limited

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

Ors. Others
SC Supreme Court
SCC Supreme Court Cases
SOT Some Other Orders of Tribunal
COMPAT Competition Appellate Tribunal
NCLAT National Company Law Appellate Tribunal
UOI Union of India
u/s Under Section
v. versus

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

INDEX OF AUTHORITIES

CONSTITUTION

1. Ss
2. Ss

STATUTES

1.
2. Asasas
3. Aadadad
4. XxsxASA
5. SDSADSAXSAX
6. DSAXSAXSA
7. XSAXSAXSA
8. ASSADCSAD
9. fwecweecewcwc

JUDICIAL PRECEDENTS

1. M/s. B. Himmatlal Agrawal Vs.

Competition Commission of India & ANR.
[Civil Appeal No. 5029 of 2018]……………………………….…………………….15
2. sxsscscs
3. cscscscs
4. scscscsc
5. cscscscscscs
6. cscscscscscsc
7. cscscscscscsc
8. scscscsccscs
9. scscscscscs
10. scscscscscscs
11. scscscscscscsc
12. cscscscsdsdsscscscsc

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

BOOKS

1. asasasas
2. sasasasas
3. asasasasa
MISCELLANEOUS

1. aadasdsad
2. asdsadsadsadasdsa
3. ddsd

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

STATEMENT OF JURISDICTION

The Appellant(s) has approach this Hon’ble Appellate Tribunal under Section 53B of The
Competition Act, 2002 hereinafter referred as Act challenging the order passed by the
Competition Commission of Pacedena, hereinafter referred as Respondent No.1 issued under
Section 27 of The Competition Act, 2002 after receiving the report of the “DG” (in capacity
of The Competition Act, 2002) issued under Sub-Section 3 of Section 26 of The Competition
Act, 2002, that the PG Pacedena Private Limited (“PG”)(Appellant no.1), Qui Pacedena Private
Limited (“Qui”)(Appellant No.2), Tam Pacedena Private Limited (“Tam”)(Appellant No.3), Trade
Association(Appellant No.4) henceforth collectively referred as Appellant(s) had manipulated the
bidding process passed by the Pacedena National Railways “PNR” hereinafter referred as
Respondent No.2. The Appellant(s) are humbly submitting this Appeal is to quash the Order
and set aside. It sets forth the facts and the laws on which the claims are based.

THE PROVISION UNDER WHICH THE PEITIONER HAS APPROACHED THE

HONORABLE COURT IS READ HEREIN UNDER AS:

Appeal to Appellate Tribunal

53B. (1) The Central Government or the State Government or a local authority or enterprise
or any person, aggrieved by any direction, decision or order referred to in clause (a) of
section 53A may prefer an appeal to the Appellate Tribunal.
(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from
the date on which a copy of the direction or decision or order made by the Commission is
received by the Central Government or the State Government or a local authority or
enterprise or any person referred to in that sub-section and it shall be in such form and be
accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said
period of sixty days if it is satisfied that there was sufficient cause for not filing it within that
period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after
giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

thinks fit, confirming, modifying or setting aside the direction, decision or order appealed
against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission
and the parties to the appeal.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt
with by it as expeditiously as possible and endeavor shall be made by it to dispose of the
appeal within six months from the date of receipt of the appeal.

STATEMENT OF FACTS

Background

1. PNR is Pacadena’s national railway system operated by the Ministry of Railways,

Pacadena. PNR is fourth-largest railway network in the world by size; revenue of
close to USD 26 billion (PR i.e. Pacadenian Rupee 1.84 trillion). It is the single
largest buyer of goods and services in Pacadena (for running operations of PNR);
attracting established-foreign-companies to participate in tenders floated by PNR.
2. PNR issues specifications for each good and service that it procures by means of
issuing tenders, including recycled-wood tables. PNR procures only one kind of
recycled-wood tables for all its railway coaches in Pacadena. Goods and services are
sourced from the specific and approved suppliers only.
3. There are three leading recycled-wood table companies in Pacedena: (i) PG Pacedena
Private Limited (“PG”), (ii) Qui Pacedena Private Limited (“Qui”) and (iii) Tam
Pacedena Private Limited (“Tam”). The market share of each of them in the recycled-
wood table market (pertaining to PNR) are 25%, 45% and 30% respectively. PG and
Qui are multi-product companies and substantial part of their turnover is from export
sales.
4. The companies (PG, Qui and Tam) have been participating in tenders floated by PNR
by way of a bidding system for procuring recycled-wood tables.

The Bidding Process

1. These are tenders for annual procurement by PNR. The total quantity tendered
annually is a sum of (1) recycled-wood tables in railway coaches as per annual
production capability of railway coaches AND (2) undertaking replacement in
existing railway coaches of PNR.
2. PNR floats tenders and invites sealed bids/quotations from their approved suppliers
of that specific good and service, to be submitted by a fixed date.
3. Once all parties/ approved suppliers submit their sealed bids, PNR opens the sealed-
bids (of all parties/ approved suppliers who participate in the subject tender).
4. The winning bidder is chosen as a result of competitive bidding and price is
discovered after opening of the bids submitted by all parties/ approved suppliers.
However, in certain circumstances winning bidder is also chosen after commercial
negotiations between PNR and bidding company(ies).

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The Allegation

1. There was a newspaper report in 2016 which was circulated widely in UTA that five
(5) manufacturers and suppliers of recycled-wood tables (details below) may have
engaged in cartel and big-rigging since 2000 in UTA.

The Investigation

1. Based on the newspaper report, PNR conducted an internal investigation and found
that two of the companies named in the UTA newspaper report participate in tenders
floated by PNR for recycled-wood tables. Based on the same; PNR decided to
conduct a study of price-bids quoted by PG, Qui and Tam since 2003 and reached a
conclusion that aside from similar (sometimes same) prices there was substantial
increase in bid-prices of recycled-wood tables submitted by PG, Qui and Tam. PNR
filed a Reference against the suppliers of recycled-wood tables to PNR in Pacedena
under Section 19 of the Competition Act.
2. The Competition Commission of Pacadena (“CCP”) took cognizance of the
Reference, passed an order under Section 26(1) of the Competition Act and directed
the Director General (“DG”) to initiate investigation into the matter in 2017.
3. On investigation of suppliers of recycled-wood tables in 2018 and rigorous analysis
for more than 9 months (which included depositions of senior management personnel
of the recycled-wood table companies); the DG prepared a report and found that the
suppliers of recycled-wood tables have engaged in bid-rigging in tenders for
procurement of recycled-wood tables by PNR between 2000 to 2018.

“DG” Report

1. The two recycled-wood table companies from UTA were found in violation of
competition laws in UTA and penalties were imposed in 2018;
2. The tenders were floated on an annual basis. While the prices were decided every
year, the supply of the recycled-wood tables used to be once in every three months.
3. The price-bids submitted by all the three companies is as follows:

Year PG (Bid Qui (Bid Tam (Bid- Tender Awarded Price in PR/
Quoted Quoted quoted price table
Price in PR/ Price in in PR/table)
table) PR/ table)
2000 99 - - 88
2001 99 - - 88
2002 120 - - 88
2003 100 88 - 88 (Qui)
2004 88 88 - 85 (Qui)
2005 100 100 - Tender Cancelled
2006 100 100 90 90 (Tam)

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MEMORIAL ON BEHALF OF: APPELLANT

2007 100 - 100 100(PG and TAM – equal

quantity)
2008 100 75 100 75 (Qui)
2009 120 - 119 119 (TAM)
2010 119 119 119 119 (all three equal quantity)
2011 128 128 - 119 (PG)
2012 - 128 128 119 (QUI and TAM equal
quantity)
2013 137 - - Tender cancelled
2013 137 137 137 135 (PG)
retender

2014 - 135 - 135 (QUI)

2015 - 137 137 137(QUI and TAM –equal
quantity)
2016 - - 137 137 (TAM)
2017 137 137 137 Tender cancelled
2018 136 136 136 Tender cancelled
2018 135 135 - 134 (PG)
Retender

4. Cost of recycled-wood tables for each of the companies was marginally different
based on place of factory for each.
5. The average annual procurement of recycled-wood tables by PNR is around PR 78
crores.
6. Ledger accounts of these three suppliers of recycled-wood tables evidenced
commercial dealings with each other.
7. There was also a trade association which existed since 2005 wherein all the recycled-
wood table manufacturers (including the three suppliers to PNR) were members. PG,
Qui and Tam used to meet at the trade association meetings. The said trade
association is still operational.
8. The prices of certain kind of recycled-wood tables by other companies of Pacadena
(i.e. ANA and KDS – not eligible for PNR tenders) were also collected and their
prices were in the range of PR 120/ table (from the years 2013-2016).
9. The prices of certain kind of recycled-wood tables PG, Qui and Tam to enterprises
other than PNR was also in the range of PR 112/ table to PR 130/ table (from the year
2009 to 2017 respectively).
10. Based on the above, the DG concluded that there was an agreement between the
recycled-wood table manufacturers (i.e. PG, Qui and Tam); and they have
engaged in big rigging which is in violation of Section 3(3)(d) of the Competition
Act.

Competition Commission of Pacedena Conclusion

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

1. After the DG report, an opportunity was given to all parties (including trade
association) to provide their oral and written objections on the DG report. Post the
objections, The case is made out under Section 3(1) read with sections 3(3)(a),
3(3)(c) and (3(3)(d) against the recycled-wood table manufacturers and the trade
association.

The Penalty

1. CCP notes that the infringing anti-competitive conduct of the parties pertain to cartel
and bid rigging in respect of the tenders floated by PNR and as such, for the purposes
of determining the relevant turnover for this infringement, revenue from tables has to
be taken into account. It may be noted that the twin objectives behind imposition of
penalties are: (a) to reflect the seriousness of the infringement; and (b) to ensure that
the threat of penalties will deter the infringing undertakings. Therefore, the quantum
of penalties imposed must correspond with the gravity of the offence and the same
must be determined after having due regard to the mitigating and aggravating
circumstances of the case.

2. CCP decided to impose penalty on Qui, PG and Tam at the rate of 10% of their
average relevant turnover of the preceding three financial years arising out of sale of
tables. The total amount of penalty is worked out as follows:
S. Party Turnover Turnover Turnover Average Penalty
No. from Table 2016-2017 2017-2018 from Table from Table
2015-2016 (in from Table from Table (in PR (in PR
PR crores) (in PR (in PR crores) crores)
crores) crores)
1 PG 150 160 170 160 16
2 QUI 120 100 90 103.3 10.3
3 TAM 65 75 80 73.3 7.3

3. CCP also decided to impose penalty on trade association at the rate of 10% of their
average income based (on their Income and Expenditure account) for the three
preceding financial years as filed by them. The total amount of penalty is worked out
as follows:
S. Party Turnover Turnover Turnover Average Penalty
No. from Table 2016-2017 2017-2018 from from
2015-2016 (in from Table from Table Table (in Table (in
PR crores) (in PR (in PR PR crores) PR crores)
crores) crores)
1. Trade .5 .5 .5 .5 0.05
Association

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ISSUES RAISED

1. WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN

LAW THE PRESENT APPEAL FILED BY THE APPELLANT(S) IS
MAINTAINABLE?

2. WHETHER, THE REPORT OF “D.G.” PASSED UNDER SUB-SECTION 3 OF

SECTION 26 OF THE ACT IS VALID?

3. WHETHER, THE ORDER PASSED BY THE “RESPONDENT NO.1” W.R.T.

PENALTY ON APPELLANT(s) IS VALID?

4. WHETHER, THE AGREEMENT B/W THE MANUFACTURER OF RECYCLE

WOOD TABLE (APPELLANT NO.1 TO 3) AND THE “RESPONDENT NO.2”, IS
ANTICOMPETITIVE IN NATURE?

5. WHETHER, THE APPELLANT(S) CONTRAVENES THE SPECIFIC SUB-

SECTION 1 OF SECTION 3 R/W CLAUSES (A), (C) AND (D) OF SUB-SECTION
3 OF SECTION 3 OF THE ACT BY “RESPONDENT NO. 1” IS VALID?

6. WHETHER, THE APPELLANT(S) HAS VIOLATED SUB-SECTION 1 OF

SECTION 3 R/W CLAUSES (A), (C) AND (D) OF SUB-SECTION 3 OF SECTION
3 AMOUNTS TO CARTEL AND BID RIGGING IN RESPECT OF THE TENDERS
FLOATED BY “PNR”(RESPONDENT NO. 2)?

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 CLC-CCI Moot Court on Competition Law, 2019 .
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SUMMARY OF ARGUMENTS

1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE

PRESENT APPEAL IS MAINTAINABLE BEFORE THIS TRIBUNAL.

The appeal is maintainable on the grounds that the Appellant(s) has submitted their oral and
written objections on the DG’s Report. Despite of that the Respondent No.1 has imposed the
Penalty without further inquiry on the basis of only DG’s Report which is bad in law.
Consequently, the present appeal cannot be deemed to be non maintainable for the
Appellant(s) all the other “alternative remedies” are exhausted.

2. THE REPORT OF “D.G.” PASSED IS NOT VALID.

The Appellant(s) herein submits that such a Report u/s 26(3) of CTA, 2002 is not valid. As it
does not shows any conclusive evidence that the manufacturers of recycled wood tables liable
for the Bid-rigging and Cartel. The allegations of the CCI were showing one side of the Facts.

3. THE ORDER PASSED BY THE “RESPONDENT NO.1” W.R.T. PENALTY ON

APPELLANT(s) IS NOT VALID.

The Penalty is imposed under the clause (b) of Section 27 of the CTA, Act, 2002. The CCI

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 CLC-CCI Moot Court on Competition Law, 2019 .
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PLEADINGS

It is humbly submitted that,

I. THAT THE APPEAL FILED BY THE APPELLANT CHALLENGING THE

ORDER OF THE COMPETITION COMMISSION OF PACEDENA IS
MAINTAINABLE-

A. NO ALTERNATIVE REMEDY OTHER THEN APPEAL

The appeal is maintainable on the grounds that the Appellant(s) has submitted their oral and
written objections on the DG’s Report. Despite of that the Respondent No.1 has imposed the
Penalty without further inquiry on the basis of only DG’s Report which is bad in law.
Consequently, the present appeal cannot be deemed to be non maintainable for the
Appellant(s) all the other “alternative remedies” are exhausted.

B. RIGHT UPON ANY OF THE AGGRIEVED PARTIES MENTIONED

THEREIN TO PREFER AN APPEAL TO THE APPELLATE TRIBUNAL

1. A neat question of law which arises for consideration in this appeal is as to whether the
order of the National Company Law Appellate Tribunal (hereinafter referred to as the
'Appellate Tribunal') dismissing the main appeal itself of the appellant herein for non-
compliance of the direction to deposit the amount as a condition for grant of stay, is justified
and legal.

In order to decide this question, it is not necessary to take stock of the factual matrix in detail.
Narration of the following facts, which are germane for deciding this appeal, would suffice.
Civil Appeal No. 5029 of 2018 Page 1 of 9 1 The appellant herein is a partnership firm,
engaged in the business of transportation of coal and sand since 1981. In June, 2014, the
appellant firm participated in two tenders, bearing numbers 03/2014-15 and 06/2014-15
floated by the respondent No. 2 herein i.e. M/s. Western Coalfields Limited. The appellant
firm was L-II and not the lowest bidder for allotment of the tenders. In June, 2015, the
appellant firm received a notice from the Competition Commission of India, New Delhi
(hereinafter referred to as 'CCI') asking to show cause under Section 19(1)(a) read with
Section 3 of the Competition Act, 2002 (hereinafter referred to as the 'Act').

1
M/s. B. Himmatlal Agrawal Vs. Competition Commission of India & ANR.[Civil
Appeal No. 5029 of 2018]
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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

In order to decide this question, it is not necessary to take stock of the factual matrix in detail.
Narration of the following facts, which are germane for deciding this appeal, would suffice.
Civil Appeal No. 5029 of 2018 Page 1 of 9 The appellant herein is a partnership firm,
engaged in the business of transportation of coal and sand since 1981. In June, 2014, the
appellant firm participated in two tenders, bearing numbers 03/2014-15 and 06/2014-15
floated by the respondent No. 2 herein i.e. M/s. Western Coalfields Limited. The appellant
firm was L-II and not the lowest bidder for allotment of the tenders. In June, 2015, the
appellant firm received a notice from the Competition Commission of India, New Delhi
(hereinafter referred to as 'CCI') asking to show cause under Section 19(1)(a) read with
Section 3 of the Competition Act, 2002 (hereinafter referred to as the 'Act').

In the said notice, it was alleged that the appellant firm was involved in anti-competitive and
unfair trade practices in collusion with nine other firms. The appellant firm filed its reply.
The CCI after considering the same passed orders under Section 26 of the Act and directed
the inquiry to be conducted by the Director General (DG) of the CCI. DG submitted its report
after the inquiry giving his findings to the effect that the appellant had indulged in anti-
competitive and unfair trade practices in collusion with the other firms. The appellant was
given a chance to file its objections thereto. After considering those objections, the CCI
passed orders dated September 14, 2017 affirming the findings of the DG and imposed
penalties on the appellant firm as well as nine parties. Insofar as appellant is concerned,
penalty of Rs.3.61 crores has been imposed.

The appellant filed the statutory appeal thereagainst before the Appellate Tribunal which was
registered as Competition Appeal (AT) No. 24/2017. The appellant also prayed for interim
stay of the penalty order. Arguments were heard on admission as well as on stay. Vide orders
dated November 20, 2017, Appellate Tribunal admitted the appeal. It also granted stay on the
orders of the CCI with the condition of depositing 10% of the total penalty (i.e. a sum of Rs.
36,12,222/-) imposed by CCI, to be paid by the appellant, within two weeks i.e. by December
4, 2017.

The appellant could not fulfill the said condition of deposit. When the matter was taken up on
December 4, 2017, the appellant pleaded before the Appellate Tribunal that non-compliance
because of financial crunch which the appellant was facing. The Appellate Tribunal,
however, passed orders dated December 4, 2017 to the following effect: "By way of last
opportunity, the appellant is given time till 20th December, 2017 to deposit 10% of the
penalty amount, failing which, the appeal stands disposed without referring further to the
bench".

As per the appellant, since it was in deep financial trouble, it could not deposit the amount by
December 20, 2017 in spite of all bona fide intentions. The appellant accordingly filed I.A.
No. 84 of 2017 on December 18, 2017 seeking modification of orders dated December 4,
2017. It was stated in the said application that it had incurred net loss of Rs.3,72,45,393.94
for the Financial Year 2016-17 and, therefore, was not in a position to deposit the said
amount.

The request of the appellant was, however, not acceded to and vide orders dated December
21, 2017, the Appellate Tribunal has dismissed I.A. No. 84 of 2017. At the same time, it has
dismissed the appeal of the appellant as well for noncompliance of its order dated December
4, 2017. The order dated December 21, 2017 reads as under: "21.12.2017 - We find no

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

ground made out to modify our interim order dated 20th November, 2017. In fact, the stay
order was passed on the request of the learned counsel for the appellant and the amount
having not deposited within the time, last opportunity was given on 4th December, 2017 to
deposit the amount. In terms of the order dated 4th December, 2017 the appeal now stands
disposed off without further reference to the Bench. In view of the order aforesaid dated 4th
December, 2017, both the IA No.84/2017 and Competition Appeal (AT) No. 24/2017 stands
disposed off for non-compliance of the Appellate Tribunal."
2
From the case above, it is apparent that order of the CCI was challenged by filing appeal
under Section 53B of the Act. Along with this appeal, the appellant had also filed application
for stay of the operation of the order of the CCI during the pendency of the appeal. Appeal
was admitted insofar as stay is concerned, which was granted subject to the condition that the
appellant deposits 10% of the amount of penalty imposed by the CCI. It needs to be
understood, in this context, that the condition of deposit was attached to the order of stay. In
case of noncompliance of the said condition, the consequence would be that stay has ceased
to operate as the condition for stay is not fulfilled. However, non-compliance of the
conditional order of stay would have no bearing insofar as the main appeal is concerned.
Right to appeal is statutorily provided under Section 53B of the Act, which reads as under:

53B. Appeal to Appellate Tribunal. -

(1) The Central Government or the State Government or a local authority or enterprise or any
person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A
may prefer an appeal to the Appellate Tribunal.

(2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the
date on which a copy of the direction or decision or order made by the Commission is
received by the Central Government or the State Government or a local authority or
enterprise or any person referred to in that sub-section and it shall be in such form and be
accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may
entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there
was sufficient cause for not filing it within that period.

(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving
the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks
fit, confirming, modifying or setting aside the direction, decision or order appealed against.

(4) The Appellate Tribunal shall send a copy of every order made by it to the Commission
and the parties to the appeal.

(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by
it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal
within six months from the date of receipt of the appeal."

2
M/s. B. Himmatlal Agrawal Vs. Competition Commission of India & ANR.[Civil
Appeal No. 5029 of 2018]
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MEMORIAL ON BEHALF OF: APPELLANT

C. PENALTY TO THE COMPANIES UNDER CTA, 2002

In the said notice, it was alleged that the appellant firm was involved in anti-competitive and
unfair trade practices in collusion with three other firms. The appellant firm filed its reply.
The CCI after considering the same passed orders under Section 26 of the Act and directed
the inquiry to be conducted by the Director General (DG) of the CCI. DG submitted its report
after the inquiry giving his findings to the effect that the appellant had indulged in anti-
competitive and unfair trade practices in collusion with the other firms. The appellant was
given a chance to file its objections thereto. After considering those objections, the CCI
passed orders dated 24 December, 2018 affirming the findings of the DG and imposed
penalties on the appellant firms as well as on association. Insofar as appellant is concerned,
penalty of Rs.34.10 crores has been imposed in totality. The Appellant No.1 with 16 crores,
Appelant No.2 with 10.3 crores, and Appelant No.3 with 7.3 crores, Also on appellant No. 4
with 7.3 crores.

II. THAT THE, THE REPORT OF “D.G.” PASSED UNDER SUB-SECTION 3

OF SECTION 26 OF THE ACT IS NOT VALID

On investigation of suppliers of recycled-wood tables in 2018 the DG prepared a report and

found that the suppliers of recycled-wood tables have engaged in bid-rigging in tenders for
procurement of recycled-wood tables by PNR between 2000 to 2018.

The DG Report is challengeable on the Certain facts that,

1. The 2nd point of the DG report state that the supply was not adequate and not maintainable
annually. The supply is once in every 3 Months. This is the Company,s Policy since the
Company has to maintain the economic order quantity while producing the recycled-
wood tables. Also it is seen in regular patterns that the sufficiency of the maintenance and
repairmen of seats of train is fulfilled even after sending the tables in the intervals of 3
Months.
2. The 3rd point is about the tender given to the companies. As it is clearly seen that the bids
were not same every time and the bids are coincidentally same in certain cases due to
market supply demand concept the companies eventually sells there goods at similar
prices. The finance concept of Market equilibrium 3 applies for the same.
3. The 4th point of the report entails the same above situation that if the market rate of
the product is uniform for every company if the quality is same. The coca-cola and
pepsico are the best example to justify that even if the cost of making product is
different of both the companies then also the Market Price is same for both. Also the
cost difference is next to be negligible.
4. The commercial transactions mentioned in point 7th of DG report, also being a point to
notice that the companies has deal amongst each other at arm’s Length price and that

3
https://en.wikipedia.org/wiki/Price_discrimination
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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

is fair to trade. There is no such evidence that the pricing system of the company is
not fair.
5. In respect of 6th point of the report the purpose of the Trade Association is for the
meeting related to the trend in market and not for any other purpose. The meeting of
minds in this situation does not constitute a conspiracy between each other rather it is
an adoptive procedure to seek the growth of the industry.
6. As mentioned in point 8th of the DG report that the Pricing of other two
manufacturers of the table whose price are lower i.e. 120/table to 130/table, cannot be
taken into accounts as on the grounds that the quality of those table in comparison of
our tables is consistently poor. This is the reason we hold the big area of this sector as
a leading seller of the table in the nation as well as abroad.
7. At point 9th the report shows our lower price to other parties i.e. other than
Respondent No.1 is due to effective discount to some of our parties which is taken as
company’s strategy to retain valuable customers and give them a discounted price. As
the company’s ledger it clearly charges higher prices to uncertain Customers i.e. who
are not regular.

The above discussion reflecting the true picture of the scenario and shows the other side of the
coin to make it clear about the same.

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

II. THAT THE APPEAL FILED BY THE APPELLANT CHALLENGING THE

ORDER OF THE COMPETITION COMMISSION OF PACEDENA IS NOT
MAINTAINABLE-

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CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

II. THAT THE APPEAL FILED BY THE APPELLANT CHALLENGING THE

ORDER OF THE COMPETITION COMMISSION OF PACEDENA IS NOT
MAINTAINABLE-

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CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

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CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

II. THAT THE APPEAL FILED BY THE APPELLANT CHALLENGING THE

ORDER OF THE COMPETITION COMMISSION OF PACEDENA IS NOT
MAINTAINABLE-

25
 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

II. THAT THE APPEAL FILED BY THE APPELLANT CHALLENGING THE

ORDER OF THE COMPETITION COMMISSION OF PACEDENA IS NOT
MAINTAINABLE-

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 CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Appellate Tribunal may be pleaded to hold, adjudge and
declare that:

 The Appeal as per the fact and circumstances of the case and in law, filed is
maintainable.
 To quash the decision of the Competition Commission of Pacedena, herewith
said as Respondent No.1.
 The report of “DG” had only shown the one side of the coin and is not valid.
 The agreement b/w the Appellant(s) and the Respondent No.2 is not
anticompetitive.
 The Appellant(s) have not violated the provisions of the Act.
 The Appellant(s) are not involved in the cartel and bid-rigging.

Or, order any other relief as it may deemed fit in the interest of the Justice, Equity and Good
Conscience.

All of which is humbly prayed,

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CLC-CCI Moot Court on Competition Law, 2019 .
MEMORIAL ON BEHALF OF: APPELLANT

Counsel for the Appellant.

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