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TMI Blog2022 (8) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... .e. a proprietorship agency, there is no need to examine the Appeal on merit. With a view to preserve sanctity of the court proceeding and confidence of the public in the system, simply dismissal of this Appeal may not serve the purpose. Further to prevent recurrence of such activity, while dismissing the appeal it is appropriate to impose cost on the appellant. The Appeal stands dismissed with imposition cost of Rs.1 lakh on the appellant. The Appellant will deposit the cost of Rs.1 lakh with Delhi High Court Legal Services Committee within twenty days from today and will submit the proof of depositing the same with the Registrar of this Tribunal. In case of non-depositing of cost, as indicated above, the Registrar of this Tribunal will proceed in accordance with law for non-complying the orders of this Tribunal. - COMPETITION APPEAL (AT) NO. 27 OF 2022 - - - Dated:- 29-7-2022 - Dushyant Versus Competition Commission of India, National Accreditation Board for Testing, Central Public Work Department, Food Safety and Standards Authority of India, Ministry of Health and Family Welfare, Department of Commerce, Consumer Industry Section, Ministry of Road Transport and Highways,\, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of provisions of Section 3 and 4 of the Act by National Accreditation Board for Testing and Calibration Laboratories (hereinafter referred to as BABL/OP1), Central Public Works Department (CPWD/OP2), Food Safety and Standards Authority of India (FSSAI/OP3), Ministry of Health and Family Welfare (OPP-4), Department of Commerce, Ministry of Commerce and Industries (OP_5), Consumer Industry Section, Department of Industrial Policy and Promotion(OP-6), Ministryof Road Transport and Highways (OP-7), Water Quality Section, Ministry of Drinking Water and Sanitation (OP-8), Delhi Development Authority (OP-9), Indian Council for Medical Research (ICMR/OP-10), Regional Ayurvedic Research Institute for Skin disorders (OP-11), WAPCOS Limited (OP-12), National Capital Region Transport Corporation Ltd (OP-13), Water Resources Department, Govt of Madhya Pradesh (OP-14), Delhi Metro Rail Corporation (OP-15), Research Design and Standard Organisation, Ministry of Railways (OP-16), Ministry of Railways (OP-17), Container Corporation of India Ltd (OP-18), Ministry of New and Renewable Energy (OP-19), Government e-marketplace, Ministry of Commerce and Industry (OP-20), Ministry of Consumer Affairs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jority of the OPs have issued Tender/ Notices/ Guidelines/ Expression of Interest/ Letters etc. wherein the terms and conditions appear to be framed by the respective OPs and in any case it cannot be deduced that NABL has a role in deciding such terms and conditions, giving it some preference. Thus, the Commission, prima facie, does not find contravention of Section 3(4) of the Act by any of the OPs. The CCI in paragraph 14, 15, 16, 17, 18 and 19 of the impugned order has given its detailed analysis which are quoted hereinbelow:- 14. The Commission notes that a majority of the allegations emanates from the terms and conditions as appearing in the respective documents of OPs, which is within the autonomy of a procurer. According to the Commission, the procurer, in its wisdom and based on its specific requirements, ought to have the autonomy to decide as to what goods/ services it intends to procure. However, this shall be subject to safeguards laid down under the relevant rules of procurement that may be applicable to that entity, besides it complying with the provisions of the Act, to the extent are applicable and having regard to the position of such entity in the market, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P-23 Construction Material OP-24 Material used in the production and supply of water OP-25 Material used in airport work OP-26 Transmission lines/sub-stations OP-27 Material used in railway works OP-28 Services of laboratories for X-rays OP-29 PV modules OP-30 Soil testing OP-31 Material used in construction of water taps OP-32 Testing services for measuring devices OP-33 Material used in highway works OP-34 Material used on construction of roads OP-35 Laboratories for testing air, water, soil and biota OP-36 Materials used in construction OP-37 Laboratory investigations on CGHS approved rates. 16. The Commission notes that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent on such buying process. Further, the autonomy to specify the requirements of procurement is inherent in the procurers. When the procurer is a dominant buyer in its sphere of economic activity and its unilateral conduct in the buying process can tend to distort competition on the supply side of such market, then there is reason to be circumspect. 19. In the present case, as regards OP-2- OP 37 seeking NABL s accreditation (based on their policies/ guidelines/ rules of procurement/ some enactments governing their functioning), there is nothing to suggest that NABL had any role in framing the same. Analysing the cases in paragraphs quoted hereinabove the Learned CCI had come to the conclusion that no prima facie case of contravention of either of the provisions of the Act was made out and finally rejected the Information Petition which has been assailed in the present Appeal by the Appellant. The Appeal was taken up for hearing under the caption for admission (fresh case) on 01.06.2022. After hearing Mr. Sumit Jain, learned counsel for the Appellant and Ms Shama Nargis, Dy. Director CCI, the Tribunal got some doubt regarding the entity/status of the Appellant and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by proof of having paid the fee as under: (a) Rupees 5000 (Five thousand) in case of individual or Hindu Undivided Family (HUF), (b) Rupees 10,000 (ten thousand ) in case of Non-Government Organisation (NGO), or Consumer Association, or a Co-operative Society, or Trust, or (c)Rupees 40,000 (forty thousand) in case of firm (including proprietorship, partnership or Limited liability partnership) or company (including one person company) having turnover in the preceding year upto rupees two crore, or (d) Rupees 1,00,000 (one lac) in case of firm (including proprietorship, partnership or Limited liability partnership) or company (including one person company) having turnover in the preceding year upto rupees two crore, and upto rupees 50 crores Rupees 5,00,000 (Five lakh) in the case not covered under clause (a), (b),(c) or (d). In view of the aforesaid Regulation certain slab of fees has been prescribed for filing information before the CCI. If the information is filed in the individual capacity, as in the present case has been filed, the Appellant was required to pay fee of Rs.5000/-. If the Appellant had given correct information regarding filing of the inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) chartered accountant means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act; (b) company secretary means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act; (c) cost accountant means a cost accountant as defined in clause (b) of sub-section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act; (d) legal practitioner means an advocate, vakil or an attorney of any High Court, and includes a pleader in practice. Section 53-S of the Competition Act, 2002 53S Right to legal representation. - (1) A person preferring an appeal to the Appellate Tribunal may either appear in person or authorise one or more chartered accountants or company secretaries or cost accountants or legal practitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tending to be counsel for the Appellant. In Volume VIII at Page 2133, in the bottom Mr. Sumit Jain has signed as counsel . In page 2134 on verification in the bottom he signed as Counsel. At page 2137 on caveat clearance in the bottom Mr. Sumit Jain has signed as counsel for the Appellant. In the authorisation which has been brought on record at Page 2138, after acceptance Mr. Sumit Jain has simply put his signatures. The copies of page No.39, 40, 55, 2133, 2134, 2137 and 2138 are given below: On examination of aforesaid fact one thing is clear that neither informant was competent nor the present appeal was competent to be taken note of. Since both the proceeding were contrary to statutory provisions particularly in violation of Section 35 and Section 53-S of the Act respectively, apart from its dismissal on the ground of non-maintainability of the Information Petition or the present Appeal, the role of Mr. Sumit Jain also appears to be doubtful During the hearing of the Appeal Mr Jain accepted that he is neither advocate, chartered accountant, company secretary nor cost accountant. Even then pretending to be counsel, he has filed the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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