2013 (12) TMI 1666 - AT - Law of Competition

Summary

Issues Involved:
1. Collusive Agreement and Bid Rigging
2. Penalty under Section 27 of the Competition Act, 2002

Summary:

Collusive Agreement and Bid Rigging:
The judgment addresses the appeals of 44 companies found guilty of contravening Section 3(3)(d) of the Competition Act, 2002, for engaging in bid rigging. The CCI initiated suo-motu proceedings based on information from M/s. Pankaj Gas Cylinders Ltd. regarding unfair conditions in a tender floated by IOCL for LPG cylinders. The Director General (DG) found a pattern of identical or near-identical bids among the 50 qualified bidders, indicating collusion. The DG's investigation revealed that the LPG Cylinder Manufacturers had formed an association and held meetings just before the tender submission, where prices were likely fixed. The CCI considered various factors such as market conditions, small number of suppliers, repetitive bidding, and identical products, concluding that these factors suggested collusive bidding. The CCI's detailed analysis of bids across different states showed identical or near-identical pricing, reinforcing the finding of collusion. The CCI rejected arguments that price parallelism in an oligopolistic market was natural, emphasizing the presence of plus factors like the association and meetings. The judgment confirms the CCI's findings of bid rigging and collusion among the appellants.

Penalty under Section 27 of the Competition Act, 2002:
The CCI imposed a penalty of 7% of the average turnover of the last three years on the guilty companies. However, the judgment criticizes the CCI for not providing reasons for choosing the 7% penalty and for applying it uniformly without considering individual circumstances. The judgment highlights the need for the CCI to consider relevant turnover, mitigating factors, and the doctrine of proportionality. The matter is remanded to the CCI for reconsideration of the penalties, with the direction to hear the parties and decide within three months. The interim order of staying the penalties upon depositing 10% and furnishing security for the rest remains in effect until the CCI's final decision.

Separate Judgment by Shri Prasad:
Shri Prasad, in his minority order, found two companies, JBM Industries Ltd. and Punjab Cylinders Ltd., guilty of contravening Section 3(3)(d) and Section 3(3)(a) of the Act, disagreeing with their exoneration by the majority. He concurred with the majority on the guilt of the other appellants and the penalty under Section 27 of the Act.