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TMI Blog2018 (1) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 2 & 3 (hereinafter referred to as 'OP 1 & 2') were the parties OP 1 & 2 were similarly arrayed in case No. 47 of 2016 also. 2. The Competition Commission of India ("CCI") has found that no case of contravention of sub-Section 3(4) and Section 4 of the Act had been made out against any of the Opposite Parties in the two matters. The matter was thus closed under the provisions of Section 26(2) of the Act. The Appellant being aggrieved has filed the present Appeal. 3. The substance of the allegation against OP 1 & 2, (if the same is to be put in a sentence) is that OP-1 is having major market share for providing Container Terminal Services at Jawaharlal Nehru Port and has interest in Gujarat Pipavav Port Ltd. and due to dominating position at Jawaharlal Nehru Port OP-1 is diverting traffic of ships to Papavav Port for commercial advantages. 4. Reference needs to made to a few facts as appearing from the information submitted by the Appellant to CCI and Appeal which has been presented: The Appellant is individual claiming to be consultant to various Companies and claims that he has intricate knowledge regarding Shipping Sector and that he is Marketing and Management personnel. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant position by diverting substantial shipping traffic from its terminal at Jawaharlal Nehru Port to its fully owned and controlled Port at Pipavav at Gujarat. According the Appellant, this was facilitated by ensuring that the capacity at the other functional Container Terminals viz., Jawaharlal Nehru Container Terminal and Nhava Sheva International Container Terminal Private Limited was blocked by its own ships and then OP-1 coersed the ships to divert to Pipavav Port in Gujarat. It is the case of the Appellant that at Gujarat there are higher tariffs than at GTIPL because that port is not controlled by Tariff Authority with major ports. By such diversification, OP-1 was making higher profits. In contrast to the profits and revenues earned by OP-2, the revenues earned otherwise by OP-1 at Jawaharlal Port would be less. At Jawaharlal Nehru Port, OP-1 is required to share 35.1% with JNPT which is not so at Papavav. It is argued that OP-1 had been coercing diversification of ships in lieu of smoother and quick around services at Gujarat Pipavav Port Ltd., i.e. Pipavav Port. This has become possible because OP-1 is substantially chocking the capacity at two other operational Contain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon Container Terminal(s) is an independent commercial decision taken by shipping lines. They claim that the Appellant has raised allegations on the basis of conjectures. Learned CCI is expected to act with caution where the informant was third party or busy body which may be espousing the cause of someone else with ulterior motive. Thus, OP-1 and 2 want the appeal to be dismissed. 9. Looking to the submission made by parties, we have examined the material available. The learned CCI in the impugned order accepted the claim of the Appellant that the relevant market is the "market for provision of Container Terminal Services in Jawaharlal Nehru Port, Mumbai'. Then the impugned order has dealt with the claim of dominance. Dealing with the submissions that OP-1 had 45.06% market share in FY 2014-15 and 45.16% in FY 2013-14, the Commission observed that at present there were five Container Terminals operating in Jawaharlal Nehru Port out of which three Terminals viz., OP-1, JNPCT and NSICT were already in operation. Learned CCI found that Nhava Sheva International Container Terminal Private Limited, Gateway Terminals Private Limited being developed by DP World, had been partially oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two CFSs operated by OP-1 there are 33 other players some of whose names are mentioned in the Order who are operating at Jawaharlal Nehru Port. CCI observed that this gives the consumer and shipping lines multiple options for services of CFS at Jawaharlal Nehru Port and these factors also act as competitive constraint upon OP-1. 14. Learned Counsel for the Appellant did not try to submit as to how so many other players in the field could be ignored. Learned CCI appears to have rightly concluded that OP-1 was not in dominant position in the relevant market as referred above. Learned CCI then referred to notification No. 69/2011 dated 03.05.2011 of the Customs Department of the Govt. of India which stipulates that usage of particular CFS facility is entirely prerogative of the Consignee and in absence of Consignee making this choice, the shipping lines may nominate the CFS facility. It has thus been observed by Ld. CCI that selection of CFS services at Port does not always lie with the shipping lines. CCI found that OP-1 is also providing facility of "Direct Port Delivery" which facilitates direct delivery of goods without intervention of any CFS operator to accredited and approved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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