Appeal No. 35 of 2016. Case: TPM Consultants Pvt. Ltd. Vs Competition Commission of India. COMPAT (Competition Appellate Tribunal)

Case NumberAppeal No. 35 of 2016
CounselFor Appellant: Reena Khar, Advocate
JudgesG.S. Singhvi, J. (Chairman), Rajeev Kher and Anita Kapur, Members
IssueCode of Civil Procedure, 1908 (CPC) - Section 100A; Competition Act, 2002 - Sections 11(2), 12, 13, 13(1), 16(1), 18, 19, 26, 26(1), 26(2), 26(6), 26(7), 27, 28, 3, 3(4), 31, 32, 33, 38, 39, 4, 4(1), 41, 42A, 43, 43A, 44, 45, 46, 53A, 53A(1), 53A(1)(a), 53B(1), 53N, 53T, 6, 9(2); Constitution Of India - Article 14; Uttar Pradesh Imposition Of ...
Judgement DateJuly 04, 2016
CourtCOMPAT (Competition Appellate Tribunal)

Order:

  1. This appeal is directed against order dated 05.04.2016 passed by the Competition Commission of India (for short, 'the Commission'), which has been termed by the appellant as an order passed under Section 26 of the Competition Act, 2002 (for short, 'the Act') and by which the Commission declined to entertain the appellant's challenge to the order passed by the Director General (DG) under Regulation 35(8) of the Competition Commission of India (General) Regulations, 2009 (for short, 'the Regulations').

  2. During the pendency of an investigation ordered by the Commission in relation to the alleged cartelization of price by the domestic tyre manufacturing companies, namely, M/s. Apollo Tyres Ltd., M/s. MRF Ltd., M/s. CEAT Ltd., M/s. J.K. Tyre & Industries Ltd., Birla Tyres and their Association - Automotive Tyre Manufacturers' Association, who are said to be supported by All India Tyre Dealers Federation, the DG sent notice dated 21.07.2015 to the appellant under Section 41 of the Act, requiring it to furnish the following information/documents:

    (i) A brief note on the activities undertaken by your company.

    (ii) Details of agreement/understanding, if any, entered into by your company with tyre manufacturing companies in respect of obtaining production/sales/exports data or any other information from such companies.

    (iii) Copy of all information obtained by your company from the tyre companies since 2009 pursuant to the aforesaid agreements(s)/understanding(s).

    (iv) Copy of agreement, if any, entered into by your company with Automobile Tyre Manufacturers' Association (ATMA) regarding sharing of information in respect of production/sales/exports/any other information pertaining to tyre manufacturing companies.

    (v) Copy of all information shared by you with ATMA since 2009.

    (vi) Whether the information obtaining by you from the tyre manufacturing companies is shared by you with any other party/agency in any form whatsoever.

    (vii) Whether the data collected by you from the tyre manufacturing companies is shared with ATMA/other party/agency in raw form or it is complied/processed by you for sharing.

    (viii) Whether any agreement has been entered by you with the tyre manufacturing companies and/or ATMA to maintain the confidentiality of the data obtained/provided to them.

  3. In compliance of the direction contained in the aforesaid order, the appellant filed confidential as well as non-confidential version of the affidavit of its Managing Director, Shri A.K. Gupta along with four documents marked as Annexures A to D. Simultaneously, it requested that the documents should be treated as confidential in terms of Regulation 35 of the Regulations. The response filed by the appellant to the notice of the DG reads as under:

    A.K. Gupta

    TPM Consultants
    K-3/A, Saket, New Delhi-110017, India
    Tel: 91-11-49892200 (4 lines)
    Fax: 91-11-26859341, www.tmp.in

    ___________________________________________________________________________________

    7th August, 2015

    Office of the Director General
    Competition Commission of India
    'B' wing, HUDCO Vishala,
    14 Bhikaji Cama Place,
    New Delhi - 110 066
    Tel: 011-26712920, Fax 26107428

    Kind Attn: Mr. Ansuman Pattanaik, Addl. Director General

    Sub: Investigation under the provisions of the Section 41 of the Competition Act, 2002 in Ref Case No. 08/2013

    Dear Sir,

    Please refer your F. No. DG/CCI/IW/1/8/2014/191/7758 letter dated 21st July, 2015. We are filing the instant Affidavit pursuant to your notice under reference with following:

    a. Confidential version of the affidavit of Mr. AK Gupta along with the Annexures, in hard and softcopy.

    b. Non-confidential version of the Affidavit of Mr. AK Gupta along with the Annexure, in hard and softcopy

    We hereby request that the following documents to be kept strictly confidential:

    It is humbly requested that the documents identified above should be treated as confidential at all times, and should not be placed in any file or annexed with any reports, decisions, directions or orders made by the Office of the Director General, Competition Commission of India.

    The Office of Deputy Director General, Competition Commission of India will appreciate that due to the very nature of the information requested, there cannot be any reasonable date on which the confidential nature of the identified documents will expire.

    In terms of Regulation 35 of the Competition Commission of India (General) Regulation, 2009, we request you to kindly ensure that the documents identified above, which are being supplied in compliance with your requisitions set out in the Notice, are kept strictly confidential for the entire duration of the case and even thereafter.

    Yours sincerely,
    With Warm Regards,

    A.K. Gupta
    TPM Consultant

  4. The request made by the appellant was disposed of by the DG vide order dated 04.12.2015. He took cognisance of Regulation 35(3) and 35(9) of the Regulations and granted confidentiality qua Annexure A, B and C till the completion of proceedings before the Commission, but refused to grant confidentiality qua Annexure D by observing that the aggregate data on production, import, export, estimates of supply and trend analyses etc. pertaining to tyre-industry cannot be considered to have any commercial value and disclosure of the same is not expected to cause any injury to the parties. This is evident from paragraphs 3 and 4 of order dated 04.12.2015, which are reproduced below:

    3. I have gone through the replies/submissions as well as the reasons submitted by TPM Consultants, for seeking confidentiality. The claim of confidentiality over the information has been considered in view of the provisions of Regulations 35(3) and 35(9) of the CCI (General) Regulations, 2009, and it is ordered as below:

    4. It is further ordered that the period of treatment of confidentiality shall be till completion of the proceedings before the CCI.

  5. On receipt of the DG's order, the appellant sent request dated 16.03.2016 to the Commission for grant of six weeks' time to file detailed submissions against the same. The Commission did not accept the request made by the appellant and fixed the matter for hearing on 05.04.2016.

  6. After hearing the representatives of the appellant, the Commission passed order dated 05.04.2016, paragraphs 3 to 6 of which are reproduced below:

    3. Vide the application, TPM has requested the Commission to grant confidentiality to the aforesaid information/documents for all times to come. The Commission considered the application in its ordinary meeting on 23rd March, 2016 and decided to hear TPM on 5th April, 2016. Today, the Commission heard TPM on its application at length.

    4. As regards Annexure A and C, TPM has submitted that these are agreements entered into by it with tyre manufacturers and ATMA. Under these agreements, TPM receives various information from tyre manufacturers and passes on consolidated information to ATMA. These agreements are not available in public domain and therefore, these should remain confidential for ever. When TPM was confronted with the requirements seeking confidentiality under Regulation 35 of the CCI General Regulations, 2009, it withdrew its request for confidentiality and admitted that these do not need confidentiality.

    5. As regards Annexure B, TPM submitted that these are the segregated data relating to productions, export, costs, etc. of individual tyre companies. The disclosure of these would cause substantial injury to those tyre companies and, therefore, these need to remain confidential for ever. The Commission observed that the DG has granted confidentiality to these information, vide order dated 4th December, 2015, till the disposal of the proceedings before the Commission. It found that the duration of confidentiality granted by the DG is reasonable and there is no reason to extend the same.

    6. Accordingly, the application dated 16th March, 2016 of TPM is disposed of.

  7. We have heard learned counsel for the appellant and perused the record. At the threshold, we asked the learned counsel to show as to how an appeal like the present one is maintainable under Section 53A of the Act. It was pointed out to the learned counsel that the Tribunal has the jurisdiction to hear and decide appeals only against any direction issued or decision made or order passed by the Commission under various sections enumerated in sub-section (1)(a) of Section 53A and Regulation 35(8) or (10) do not find mention therein.

  8. In reply, learned counsel submitted that the impugned order should be treated as one made under Section 26 because denial of total confidentiality to the documents would seriously prejudice the appellant because it had already entered into an agreement with the tyre companies not to share the information with any party.

  9. In our opinion, there is no merit in the submission of the learned counsel that the impugned order should be treated to have been made under Section 26 of the Act. Section 26 on which reliance has been placed by learned counsel and Section 53A, which confers power upon the Tribunal to hear and dispose of appeals against any direction issued or decisions made or order passed by the Commission under the specified sections of the Act read as under:

    "Section 26

  10. 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 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 in to 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...

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