I.A. No. 03/2017 in Appeal No. 68/2016. Case: Binani Cement Limited Vs Competition Commission of India and Ors.. COMPAT (Competition Appellate Tribunal)
| Case Number | I.A. No. 03/2017 in Appeal No. 68/2016 |
| Counsel | For Appellant: Meenakshi Arora, Senior Advocate assisted by Siddhesh Kotwal, Shreya Bhatnagar and Urvashi Bandhu, Advocates and For Respondents: Vaibhav Gaggar, Saksham Dhingra and Bhav Arora, Advocates |
| Judges | Rajeev Kher and Anita Kapur, Members |
| Issue | Code of Civil Procedure, 1908 (CPC) - Sections 1, 114, 151; Competition Act, 2002 - Sections 2, 3(3), 53O, 53O(2)(f) |
| Judgement Date | January 09, 2017 |
| Court | COMPAT (Competition Appellate Tribunal) |
Order:
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The Applicant has filed the present application seeking waiver of deposit of 10% of penalty amount directed to be deposited vide our Order dated 28.11.2016.
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The facts of the case are that the Competition Commission of India (hereinafter referred to as 'the Commission') had, vide order dated 31.08.2016, imposed a penalty of Rs. 167.32 crores on the Applicant. The Applicant filed an appeal against the said order, registered as Appeal No. 68 of 2016, and also made an application (IA162/2016) for the stay of operation of the said order on the following grounds:
"4. That this Hon'ble Tribunal was pleased to stay the operation of the impugned Order dated 31.08.2016 in Appeal No. 46/2016 titled ACC Limited v. Competition Commission of India & others vide Order dated 07.11.2016. In light of the same, it is humbly submitted that, in the interest of justice and on the grounds of parity, the operation of the Impugned Order dated 31.08.2016 be stayed. A copy of the Order dated 07.11.2016 passed by this Hon'ble Tribunal in Appeal No. 46 of 2016 is annexed herewith and marked as Annexure-L.
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It is submitted that the Appellant is bound to suffer irreparable harm and adverse financial consequences of the operation of the impugned order is not stayed until the disposal of the present Appeal.
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The operation of the Appellant's plant will be affected adversely in the absence of working capital and it will become impossible to run the plant resulting in disturbance of the entire supply chain and closure of the plant.
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Consequently, the closure of the plant will directly affect the employment of more than 1000 permanent workers, staff and officers and approximately 1575 contract workers. Further, employment of people working for various dealers, suppliers, transporters, service providers and local economy/business is most likely to get affect and there is likely to be loss of employment in the dependent sectors also.
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That the Hon'ble Competition Commission has erred in giving a pre-determined and unreasoned finding of cartel/anti-competitive agreement and imposing excessive penalty against the Appellant as there is no evidence whatsoever to substantiate any finding of Hon'ble Competition Commission on violation of Section 3(3) of the Act against the Appellant. The DG has failed to, establish any case whatsoever of violation of the Act as alleged against the Appellant and the impugned order has been passed without application of mind, in particular against the Appellant.
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Further, despite the directions issued by this Hon'ble Tribunal vide order dated 11.12.2015, whereby the Hon'ble Competition Commission was directed to "pass fresh order in accordance with law", the impugned order passed by the Hon'ble Competition Commission is almost identical to the previous order dated 20.06.2012 passed by the Hon'ble Competition Commission. Thus proving that the Hon'ble Competition Commission did not pay heed to or consider the submissions made by the Appellant. Instead, the Hon'ble Competition Commission blindly passed the same order as the previous order dated 20.06.2012, without application of mind, defeating the entire purpose of remanding this case to the Hon'ble Competition Commission by this Hon'ble Tribunal.
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It is pertinent to mention that the Hon'ble Competition Commission has relied on irrelevant material to arrive at the erroneous findings/conclusion of violation of section 3(3) of the Act for the alleged period or at all. The Hon'ble Competition Commission has blatantly ignored and/or not considered and/or failed to appreciate any replies, submissions and evidence submitted by the Appellant establishing that it was never a member of any cartel or involved in any concerted practices with other cement manufacturers as alleged or at all.
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In light of the submissions, fact and contentions laid out hereinabove, it is submitted that the operation of the directions laid down under the impugned order dated...
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