3 - Methodology for Determination of Penalty for Enterprises Under Section 27(B) of the Act - CCI (Determination Of Monetary Penalty) Guidelines, 2024

CHAPTER II METHODOLOGY FOR DETERMINATION OF PENALTY FOR ENTERPRISES UNDER SECTION 27(b) OF THE ACT 3 . (1) The Commission, to begin with, would consider, having due regard to all or any of the following factors, an amount up to thirty percent of the average relevant turnover or average income, as the case may be, of the enterprise for the purpose of determination of penalty to be imposed on an enterprise under Section 27(b) of the Act: - a. nature and gravity of the contravention; b. nature of the industry or sector affected because of the contravention and its implications on the economy; and/or c. any other factor which the Commission may deem appropriate in the facts and circumstances of each case. (2) The Commission may impose penalty by adjusting the amount so determined in paragraph 3(1) subject to the legal maximum, on each enterprise in terms of turnover or income, as the case may be, having due regard to all or any of the following factors, namely: - a. duration of the contravention and/ or duration of involvement of the enterprise in such contravention; b. role of the enterprise in orchestrating the contravening conduct; c. recourse to coercive or retaliatory measures on other enterprises to participate in the contravention and/or any retaliatory measures taken against other enterprise(s) with a view to enforcing the conduct or practices constituting the contravention; d. repeated contravention; e. admission of contravention, if any, by the enterprise and the stage at which such admission is made; f. furnishing of cogent evidence by the enterprise establishing that its involvement in the contravention was substantially limited; g. extent of cooperation by the enterprise during the Director General s investigation and/ or proceedings before the Commission; h. voluntary termination of alleged anti-competitive conduct, under intimation to the Commission; i. implementation of a competition compliance programme within the enterprise; and/ or j. any other factor which the Commission may deem appropriate in the facts and circumstances of each case. (3) For calculating average relevant turnover or average income, the Commission, subject to the facts and circumstances of each case, may consider the relevant turnover or income of three years of the enterprise preceding the year in which the Director General s investigation report is received by the Commission. Provided that, in appropriate cases, for the reasons to be recorded in writing, the Commission may consider the relevant turnover of three years preceding the contravention. (4) Turnover or income or relevant turnover or any other financial information, as sought by the Commission, shall be based on the audited financial statements of the enterprise furnished by way of a certificate from a statutory auditor of the enterprise, or in his absence by a Chartered Accountant, and supported by an affidavit by a person duly authorised by the enterprise in this regard. (5) In case audited financial statements are not available, turnover or income or relevant turnover or any other financial information, as sought by the Commission, shall be the amount certified by the statutory auditor of the enterprise, or in his absence by a Chartered Accountant, and supported by an affidavit by a person duly authorised by the enterprise in this regard. (6) Where the determination of relevant turnover is not feasible under paragraph 3(3) above, the Commission may consider the global turnover, derived from all products and services, for the purpose of determination of amount of penalty under paragraph 3(1) above. (7) If, in view of the Commission, the amount of penalty so determined is not sufficient to create deterrence, the Commission may, further increase the amount of penalty, subject to the legal maximum.