Case Law Details
In re Chief Materials Manager, North Western Railway Vs. Moulded Fibreglass Products and Others (Competition Commission of India)
The Competition Commission of India (CCI) issued a final order against eleven (11) companies/ firms which were found to have contravened the provisions of Sections 3(3)(a), 3(3)(b), 3(3)(c) and 3(3)(d) read with Section 3(1) of the Competition Act, 2002 (Act), which proscribe anti-competitive agreements. The case was initiated on the basis of a reference filed on behalf of the North Western Railways.
CCI found these companies/ firms to have indulged in cartelisation in the supply of High Performance Polyamide Bushes (HPPA) and Self Lubricating Polyester Resin Bushes (SLPR) to the Indian Railways by means of directly or indirectly determining prices, allocating tenders, controlling supply and market, co-ordinating bid prices and manipulating the bidding process. The evidence in the matter included regular e-mail communications and WhatsApp exchanges between the parties, quoting of identical/ similar prices by certain parties, filing of bids from same IP addresses by certain parties in close proximity etc. Of the eleven (11) entities, four (04) were lesser penalty applicants before the CCI. Under Section 46 of the Act, a cartel member may approach the Commission by way of filing an application seeking lesser penalty, in return for providing full, true and vital disclosures in respect of the alleged cartel to the Commission.
Further, fourteen (14) individuals of these eleven (11) entities were also held by the CCI to be liable for the anti-competitive conduct of their respective companies/ firms, in terms of the provisions of Section 48 of the Act.
CCI imposed penalties @5% of the average turnover/ income upon the companies/ firms and their respective individuals found guilty of violating the provisions of the Act. Giving benefit of reduction in penalty under the provisions of Section 46 of the Act of 80% to first lesser penalty applicant and its individuals, 40% to second lesser penalty applicant, 30% to third lesser penalty applicant and its individuals, and 20% to fourth lesser penalty applicant and its individuals, CCI directed the parties to pay penalties totaling to approx. INR 1.16 crores, besides issuing a cease-and-desist order.
The order was passed in Ref. Case No. 03 of 2018 and a copy of the order is available at CCI website at www.cci.gov.in.
ORDER UNDER SECTION 27 OF THE COMPETITION ACT, 2002
Facts:
1. The present matter was initiated by the Commission on receipt of a Reference under Section 19(1)(b) of the Competition Act, 2002 (the ‘Act’) from Chief Materials Manager, North Western Railways (‘Informant’), against Moulded Fibreglass Products (‘OP-1’) and Power Mould (‘OP-2’).
2. The Informant alleged that OP-1 and OP-2 had indulged in cartelisation in the Informant’s bidding process for the procurement of High Performance Polyamide (‘HPPA’) Bushes and Self Lubricating Polyester Resin (‘SLPR’) Bushes (which are alternatives to each other) used in Bogie Mounted Brake Cylinder Coaches in contravention of the provisions of the Act. The Informant, inter alia, submitted that OP-1 and OP-2 had quoted identical prices to the last 2 decimal points in their bids, in response to the Informant’s Re-Tender No. 30.16.2151-A opened on 02.09.2016, despite them being located at different places (Kolkata and Daman).
3. Upon consideration of the reference in its ordinary meeting held on 19.07.2018, the Commission decided to call for certain documents/ clarification from the Informant which were filed by him on 17.08.2018.
4. Thereafter, the Commission considered the matter in its ordinary meeting held on 11.09.2018 and decided to pass an appropriate order.
5. Subsequent thereto, the Commission passed an order dated 16.10.2018 under Section 26(1) of the Act forming an opinion that there exists a prima facie case of contravention of the provisions of Section 3(3)(d) read with Section 3(1) of the Act, and accordingly, directed the Director General (‘DG’) to cause an investigation into the matter and submit a report. The Commission made it clear that if during the course of investigation, the DG comes across anti-competitive conduct of any other entity/ person in addition to those mentioned in the information, the DG shall be at liberty to investigate the same as well. Further, the DG was directed to conduct a detailed investigation into the matter without restricting and confining itself to the duration mentioned in the information. The DG was also directed to investigate the role of the officials of the Opposite Parties, in terms of Section 48 of the Act, after giving them due opportunity of being heard.
6. During the pendency of investigation before the DG, applications under Section 46 of the Act read with Regulation 5 of the Competition Commission of India (Lesser Penalty) Regulations, 2009 (‘LPR’) were received in the Commission on behalf of (i) Black Burn and Co. Pvt. Ltd. and its 5 individuals, (ii) OP-1 and its 5 individuals, (iii) Jai Polypan Pvt. Ltd. and its individuals, and (iv) Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) and its 2 individuals. The same, vide separate orders, were forwarded by the Commission to the DG.
Findings of the DG:
7. The DG, after conducting a comprehensive investigation in the matter, submitted the investigation report. The findings of the DG in its report, in brief, are as under:
(a) The following nine (09) other parties are also found to be involved in the alleged cartelisation:
i. Black Burn and Co. Pvt. Ltd. (‘OP-3’)
ii. Polyset Plastics Private Ltd. (‘OP-4’)
iii. M/s Anju Techno Industries (‘OP-5’)
iv. Calstar Steel Limited (‘OP-6’)
v. Jai Polypan Pvt. Ltd. (‘OP-7’)
vi. Polymer Products of India Ltd. (‘OP-8’)
vii M/s Micro Engineers (‘OP-9’)
viii. Quadrant EPP Surlon India Ltd. (Now MCAM Surlon India Ltd.) (‘OP-10’)
ix. Skylark Projects Pvt. Ltd (‘OP-11’)
(b) After analysing the nature of activities performed by the contravening parties i.e. manufacture and supply of moulded plastics, HPPA/ SLPR Bushes, protective tubes and other multiple components, all the eleven (11) parties (OP-1 and OP-2 and the above additional 09 parties) were found to be entities indulging into economic activities and hence, ‘enterprise’ within the definition of Section 2(h) of the Act. Further, it was found that the Indian Railways, vide its circular, has declared HPPA/ SLPR Bushes to be alternates to each other. As such, all the 11 parties were found to be engaged in identical/ similar trade of goods. Accordingly, the conduct of these 11 parties was can be analysed in terms of Section 3(3) of the Act.
(c) During the investigation, the DG analysed various evidences in the form of price parallelism in various tenders across different railways zones, commonality of IP addresses and common login time and date of a bunch of parties, common directorship/ partnership of some groups of parties, and e-mail exchanges and WhatsApp communications between representatives of various parties. The DG carved out a modus operandi which was being followed by the parties and observed that:
a. there was a clear understanding between the parties with respect to determination of prices in regard to the tenders floated by Indian Railways for procurement of HPPA/ SLPR Bushes. Further, there were also discussions regarding revision in prices and e-mails where members can be seen pressuring other members to quote only the decided prices and not lower;
b. the parties had an agreement and understanding wherein the intention was to inflate or increase the prices of HPPA/ SLPR Bushes in the tendering process. The parties also discouraged each other to quote lower rates in the bids and encouraged each other to quote higher prices;
c. the parties could be seen asking other parties to withdraw their offers which showed that the parties, in agreement with each other, were controlling and limiting the supply of HPPA/ SLPR Bushes as these were the only approved vendors of the said product;
d. the tenders were distributed amongst the parties on the basis different railway zones and accordingly, the parties were sharing the market by way of allocation of the tenders by geographical area of the market.
In view of the above, the DG concluded that all the eleven (11) parties were indulging in contravention of the provisions of Section 3(3)(a), 3(3)(b), 3(3)(c) and 3(3)(d) of the Act.
(d) In terms of Section 48 of the Act, the DG identified certain individuals of the parties who had played an active role in contravention of the provisions of the Act by the respective entity and/ or was in-charge of and responsible for the conduct of the business of the respective entity during the period of contravention, and accordingly, fixed liability upon 14 such individuals..
Proceedings before the Commission:
8. The Commission considered the investigation report submitted by the DG in its ordinary meeting held on 15.04.2021 and decided to implead the additional 09 parties found guilty of contravention of the provisions of the Act by the DG, as Opposite Parties 03 to 11 in the present matter (OP-1 to OP-11 hereinafter referred to as the ‘OPs’). The Commission also forwarded an electronic copy of public version of the investigation report to the Informant, giving it an opportunity to file its suggestions/ objections, if any thereto. As far as the OPs and their individuals found liable by the DG in terms of Section 48 of the Act were concerned, the Commission decided to form a confidentiality ring amongst them for the purposes of sharing confidential version of the DG Report/ DG Records with them, and accordingly, directed the OPs and their individuals concerned to furnish to the Commission, the names and undertakings of persons who would form part of the confidentiality ring on their behalf.
9. Upon receipt of such names and undertakings from 09 out of 11 OPs and their 12 individuals, the Commission, vide order dated 08.09.2021, created a confidentiality ring amongst the 09 OPs and their 12 individuals and forwarded to them, electronic copy of the confidential version of the investigation report. To remaining 02 OPs and their 02 individuals, non-confidential qua OPs version of the investigation report was forwarded. The parties were given an opportunity to file their suggestions/ objections, if any, to the investigation report of the DG and they were also directed to file their certain financial statements. The OPs were directed to furnish their audited Financial Statements including Balance Sheets and Profit & Loss Accounts for the relevant Financial Years (‘FYs’) i.e. 2015-16 to 2019-20 along with details of their revenue and profit generated in these FYs from the sale of HPPA Bushes and SLPR Bushes by way of Affidavits supported by certificates of Chartered Accountants, while the persons identified by the DG in terms of Section 48 of the Act were directed to file their income details including Income Tax Returns (‘ITRs’) for the FYs 2017-18, 2018-19 and 2019-20.
10. Thereafter, on 27.01.2022, the Commission heard the oral submissions addressed by the respective learned counsel(s) for the parties on the DG report and on the respective applications for lesser penalty filed by certain parties under Section 46 of the Act. The Commission decided to pass an appropriate order in the matter in due course. Thereafter, the parties submitted their respective written arguments.
Submissions of the parties:
11. In their suggestions/ objections to the investigation report of DG written arguments, and during the oral hearing, the parties took diverse pleas which are summarised in the succeeding paras:
12. Informant
12.1 No submissions were filed on behalf of the Informant, and neither anyone appeared on behalf of the Informant.
13. Moulded Fibreglass Products and Mr. Alok Somani
13.1 OP-1 largely agrees with the observations and conclusions drawn in the investigation report. However, it may be noted that OP-1’s role in the cartel was limited only in its capacity of being a Part I supplier of SLPR Bushes. It did not participate in the cartel as Part II supplier of HPPA Bushes. Further, though the cartel was in operation since 2014 onwards, OP-1 came to know about the same only in 2016 when Mr. Alok Somani was approached by the other manufacturers to become a part of the cartel. In 2016 also, OP-1 became an unwilling member to the cartel only because it was incurring heavy losses in its SLPR Bushes business as the Indian Railways had decided to treat low performing HPPA bushes at par with expensive SLPR bushes. However even on becoming a part of the cartel, OP-1 did not play an active role in facilitating the cartel. Since beginning, it was Ms. Shanta Sohoni of OP-4 who co-ordinated the activities and was the ring leader of the cartel. Further, the tendering mechanism of Indian Railways of negotiating prices based on L1 quotes also lead to an indirect exchange of price related information.
13.2 There was no cartel between OP-1, OP-3 and OP-11. The DG’s theory of there being a cartel between OP-1 and OP-3 based on identical IP addresses from which bids were quoted, is untenable. OP-1 and OP-3 may have participated in the same tenders, but while one was quoting for HPPA Bushes, the other was quoting for SLPR Bushes. Further, the Indian Railways was also well aware of OP-1 and OP-3 being sister entities. For the sake of complete disclosure, it is submitted that on certain occasions, even OP-11 also filed the bids from OP-3’s office; however, this was because OP-11 bought the major raw material ‘prepreg’ for SLPR Bushes, from OP-3 only. OP-11 could enter the business of SLPR Bushes only because of the help of OP-3 which provided to it the necessary raw material and technology to develop SLPR Bushes. However, it continued to face various technical difficulties for which it regularly consulted OP-1 and OP-3. Hence, it cannot be said that OP-11 provided cover bids for OP-1 and OP-3.
13.3 The DG has not investigated cartel conduct prior to 2016 despite there being evidence on record to show that the cartel was in operation from at least 2014.
13.4 The DG’s conclusion regarding there being geographical allocation of market amongst the OPs, is factually and legally, untenable. There is no evidence on record regarding territorial/ geographical/ zonal allocation of tenders amongst the OPs.
13.5 OP-1 is a Micro Small and Medium Enterprise (‘MSME’) and has undergone severe economic hardship on account of COVID-19 pandemic. Hence, monetary penalty ought not to be imposed on OP-1.
13.6 OP-1 has fulfilled all conditions mentioned in the LPR for grant of lesser penalty to it. It has provided full, true and vital disclosures and has extended full, continuous and expeditious co-operation. In fact, the disclosures made by OP-1 and OP-3 led to other participants also file for lesser penalty. The DG has also extensively relied upon the evidence provided by OP-1 to incriminate various OPs. Even before the filing of a lesser penalty application, Mr. Alok Somani of OP-1 had voluntarily made vital disclosures to the DG and provided direct evidence of cartel which included e-mails exchanged between the OPs in furtherance of the cartel. Hence, OP-1 ought to be granted the maximum benefit of reduction in penalty, if any, imposed upon it.
13.7 OP-1’s participation in the cartel did not lead to any appreciable adverse effect on competition (‘AAEC’) within India. In terms of the factors stated under Section 19(3) of the Act, OP-1’s conduct neither created any entry barriers for new entrants in the market, nor drove existing competitors out of the market, nor led to foreclosure of competition by hindering entry into the market. Rather, OP-1 developed a technically superior product in the form of SLPR Bushes along with competing vigorously against incumbent HPPA Bushes players who had formed a cartel which led to significant benefit to the consumer (Indian Railways). It helped OP-11 enter SLPR Bushes market leading to improvement in the production and distribution of SLPR Bushes. By developing SLPR Bushes, OP-1 solved longstanding technical problem faced by the Indian Railways thereby leading to promotion of technical and scientific development.
14. Black Burn and Co. Pvt. Ltd. and Mr. Alok Somani
14.1 OP-3 largely agrees with the observations and conclusions drawn in the investigation report. However, though the cartel was in operation since 2014 onwards, OP-3 came to know about the same only in 2016 when Mr. Alok Somani was approached by the other manufacturers to become a part of the cartel. Further, OP-3 started participating in the cartel only from January 2018 onwards, that too because it was incurring heavy losses in its SLPR Bushes business as the Indian Railways had decided to treat low performing HPPA bushes at par with expensive SLPR bushes. It can be seen from the rates quoted by OP-3 in 2016 and 2017 tenders that such rates were quite low and competitive. Anyhow, even on becoming a part of the cartel in January 2018, OP-3 did not play an active role in facilitating the cartel. Since beginning, it was Ms. Shanta Sohoni of OP-4 who coordinated the activities and was the ring leader of the cartel.
14.2 In many of the excel sheets containing data of allotment of tenders to various OPs which are attached to the e-mails of Ms. Shanta Sohoni of OP-4 sent 2016 onwards, OP-3 has been wrongly mentioned in place of OP-1. It was OP-1 and not OP-3 which had joined the cartel in 2016. Further, the tendering mechanism of Indian Railways of negotiating prices based on L1 quotes also lead to an indirect exchange of price related information.
14.3 There was no cartel between OP-1, OP-3 and OP-11. The DG’s theory of there being a cartel between OP-1 and OP-3 based on identical IP addresses from which bids were quoted, is untenable. OP-1 and OP-3 may have participated in the same tenders, but while one was quoting for HPPA Bushes, the other was quoting for SLPR Bushes. Further, the Indian Railways was also well aware of OP-1 and OP-3 being sister entities. For the sake of complete disclosure, it is submitted that on certain occasions, even OP-11 also filed the bids from OP-3’s office; however, this was because OP-11 brought the major raw material ‘prepreg’ for SLPR Bushes, from OP-3 only. OP-11 could enter the business of SLPR Bushes only because of the help of OP-3 which provided to it the necessary raw material and technology to develop SLPR Bushes. However, it continued to face various technical difficulties for which it regularly consulted OP-1 and OP-3. Hence, it cannot be said that OP-11 provided cover bids for OP-1 and OP-3.
14.4 The DG has not investigated cartel conduct prior to 2016 despite there being evidence on record to show that the cartel was in operation from at least 2014.
14.5 The DG’s conclusion regarding there being geographical allocation of market amongst the OPs is factually and legally, untenable. There is no evidence on record to regarding territorial/ geographical/ zonal allocation of tenders amongst the OPs.
14.6 OP-3 is an MSME and has undergone severe economic hardship on account of COVID-19 pandemic. Hence, monetary penalty ought not to be imposed on OP-3.
14.7 OP-3 has fulfilled all conditions mentioned in the LPR for grant of lesser penalty to it. It has provided full, true and vital disclosures and has extended full, continuous and expeditious co-operation. In fact, the disclosures made by OP-1 and OP-3 led to other participants also file for lesser penalty. The DG has also extensively relied upon the evidence provided by OP-3 to incriminate various OPs. Even before the filing of a lesser penalty application, Mr. Alok Somani of OP-3 had voluntarily made vital disclosures to the DG and provided direct evidence of cartel which included e-mails exchanged between the OPs in furtherance of the cartel. Hence, OP-3 ought to be granted the maximum benefit of reduction in penalty, if any, imposed upon it.
14.8 OP-3’s participation in the cartel did not lead to any AAEC within India. In terms of the factors stated under Section 19(3) of the Act, OP-3’s conduct neither created any entry barriers for new entrants in the market, nor drove existing competitors out of the market, nor led to foreclosure of competition by hindering entry into the market. Rather, OP-3 developed a technically superior product in the form of SLPR Bushes along with competing vigorously against incumbent HPPA Bushes players who had formed a cartel which led to significant benefit to the consumer (Indian Railways). It helped OP-1 and OP-11 enter SLPR Bushes market leading to improvement in the production and distribution of SLPR Bushes. By developing SLPR Bushes, OP-3 solved long-standing technical problem faced by the Indian Railways thereby leading to promotion of technical and scientific development.
15. Power Mould, M/s Anju Techno Industries, Polyset Plastics Private Ltd., Mr. Bhupesh Bafna and Ms. Shanta Sohoni
15.1 The informal market understanding amongst the vendors with regard to the supply of HPPA Bushes to the Railways existed to safeguard and recover the investments in R&D put forth by the vendors and to deliver good quality product at reasonable price. The answering OPs were not fully aware of the exact and specific competition law in the country and the OPs will certainly be extra careful and cautious of all rules, regulations and existing compliances in all their future dealings. The informal arrangement between the OPs existed in ignorance of existing laws. Their intention or actions were not to prevent the entry of any new entity in the tender process i.e. anti-competitive in nature. The field and market was always open for all and the answering OPs’ dealings have always been fair to all.
15.2 In the digital era, procurement system and subsequent tendering process of the Indian Railways is very robust and in no way can be influenced by the vendors. It is not the case that due to any action on part of the answering OPs, the price of the product increased or jacked-up.
15.3 The answering OPs have never been party to any earlier inquiry or investigation. The revenue earned by them from the sale of HPPA Bushes is also very less considering the overall business. Further, in light of the impact of COVID-19 pandemic and consequent lockdowns, the businesses of the answering OPs have suffered a lot. Hence, no penalty ought to be imposed upon the answering OPs.
16. Calstar Steel Ltd. and Mr. Vikas Agarwal
16.1 OP-6 has not been a member of the association amongst the OPs for a major portion of the period in question. It was not an active member and always had reservations in forming or participating in this association. It was only a part of the association for a brief period from 05.12.2016 to 22.06.2017 and further from 01.03.2019 to 31.03.2020. It was a reluctant participant as it did not approve of this understanding/ association and joined for this brief period only at the insistence of other participants. From the documents on record, it is very clear that OP-6 had not quoted in any tender during the period 22.06.2017 to 01.03.2019 as per the directions of the association or participated in any manner with the association. The DG has missed out that OP-6 was not a regular participant and was a part of the association only for a brief period. As a result of not being a regular member, OP-6 was not able to get good rates and operated at a negligible profit.
17. Jai Polypan Pvt. Ltd., Mr. Vishal Baid, Mr. Rajeev Dhudani and Mr. Rajesh R.
17.1 OP-7 is a lesser penalty applicant before the Commission. Through its lesser penalty application, OP-7 has provided full, true and vital disclosures regarding the alleged cartel. OP-7 has extensively explained the cartel conduct by providing details of (i) the market structure in which the cartel arrangement took place; (ii) the members and modus operandi of the cartel, (iii) role of key persons involved in the cartel, (iv) e-mail correspondences regarding preparation and submission of bids in a concerted manner and indicating sharing of commercially sensitive and confidential price information between the OPs; and (v) chronology of the related events in which bid-rigging took place. Further, OP-7 also provided allocation tables, which contain details of all tenders for which the OPs had colluded with each other to fix prices and allocate quantity amongst each other. The allocation tables contained details of approximately 417 tenders from February 2016 till July 2020. Hence, OP-7 has made immense value addition by way of its submissions and extensively assisted the DG in arriving at its conclusions. The DG has heavily relied on the information and evidence submitted by OP-7. This value addition by OP-7 demonstrates the exact nature of collusion, which would have been difficult to ascertain without having received the extensive cooperation from OP-7. OP-7 also submitted evidence highlighting involvement of additional member(s) in the cartel conduct who have not been identified by the DG as relevant individual(s) under Section 48 of the Act. In light of this, and considering the fact that OP-7 has fulfilled all conditions for grant of lesser penalty as mentioned under the LPR, OP-7 and its individuals should not be levied any penalty, and if a penalty is to be levied, OP-7 and its individuals ought to be granted the maximum applicable reduction in penalty under the LPR.
17.2 The DG has erred in observing that the OPs indulged in geographical allocation of the market. The Indian Railways distributes its operations into different zones across the country geographically and each railway zone procures its products separately by floating separate tenders. The DG rightly mentions that the OPs had allocated the market percentage to each vendor. However, this market percentage is not allocated on the basis of any geographic segmentation as the OPs supply their products to railways pan-India, i.e. across various railway zones.
17.3 Penalty, if any, ought to be imposed only on relevant turnover/ profit of OP-7, i.e. the turnover/ profit derived from sale of HPPA bushes in the relevant time period/ duration (i.e. 2016 to 2020)
17.4 Following mitigating factors ought to be considered in case the Commission deems it necessary to impose penalty: (i) OP-7 continuously co-operated with the Commission and the DG during the investigation; (ii) OP-7 earned insignificant profits from the cartel arrangement; (iii) OP-7 was forced to join hands with other vendors in order to secure their business because the market is driven and solely controlled by Indian Railways and vendors have to adhere to the framework and tender conditions stipulated by Indian Railways; (iv) OP-7 is a MSME unit with limited resources, and has suffered significant repercussions of COVID-19 pandemic and accordingly, imposition of penalty will put an additional significant financial burden on OP-7; and (v) OP-7 played a limited role in the cartel arrangement as Ms. Shanta Sohoni was responsible for co-ordinating amongst the members of the cartel.
17.5 OP-7 had also disclosed about existence of another cartel arrangement. The Competition Law Review Committee, in its report dated 26.07.2019, has acknowledged the challenges faced by the Commission in cartel detection and enforcement and, in view of this, recommended that where an applicant makes full, true and vital disclosure with respect to another cartel (Leniency Plus), such applicant may be granted lesser penalty specified in the LPR. In view of this, the Commission, while deciding the quantum of penalty reduction in the present matter, may also take into account the additional disclosure of a contravention of Section 3 of the Act made by OP-7 in another matter. Considering the legislative desire for Leniency Plus, in addition to the comprehensive co-operation provided by OP-7 in this matter, the Commission may, considering the fact that OP-7 has also made full, true and vital disclosures with respect to another anti-competitive agreement, grant OP-7 and its individuals, 100% immunity from penalty in the present matter.
18. Polymer Products of India Ltd., Mr. Vishnu N.M., Mr. Venkata Subramanyam and Mr. Harsha Gumballi
18.1 OP-8 was not named as an OP in the initial reference received from the Informant. OP-8 and its individuals were rather impleaded by the DG later as an after-thought without any merit, solely on the basis of the fact that OP-8 had always participated in the tender process issued by the Indian Railways. However, the DG, in the investigation report, has failed to establish any relation between OP-8 and the other OPs.
18.2 The DG has failed to establish prior agreement of ‘meeting of minds’ between the OPs. The communications referred to between OP-8 and its individuals with other OPs rather express difference of opinions and disagreements. OP-8 has always followed fair trade practices and accordingly, avoids any professional communication with any competitor with respect to any tender whatsoever, for which OP-8 may or may not bid.
18.3 OP-8 was only a Part II supplier of HPPA Bushes/ SLPR Bushes to the Indian Railways. Part II suppliers are not considered for supply of more than 20% of the tendered quantity, that too only if the rate quoted by them is less than Part I source suppliers’ rate. Since OP-8 was offered 10% of the net procurable quantity in the Impugned Tender, it illustrates that OP-8 had quoted quite competitive rates to the Indian Railways based on various factors such as cost of raw material, labour cost, freight cost, etc. Being a part II source supplier, OP-8 is in no position to dictate the prices of HPPA Bushes/ SLPR Bushes, which are decided on the basis of prices of Part I source suppliers. Part II source suppliers are left at complete mercy of Part I source suppliers and they are forced to follow the directions set by Part I source suppliers to survive in the market and procure business. Hence, OP-8, having no control over the market of HPPA/ SLPR Bushes, has not entered into any cartel arrangement and/ or manipulated the prices of HPPA/ SLPR Bushes.
18.4 OP-8 has not indulged in modification of any prices arising out of the cartel.
18.5 OP-8 had not quoted in any of the tenders through a common IP address with any other OP.
18.6 OP-8 had provided all relevant information, documents and evidence during the entire proceedings and has co-operated genuinely, fully, continuously and expeditiously in the present matter. It has not concealed, destroyed, manipulated or removed any relevant and necessary documents of the present case.
18.7 COVID-19 pandemic has had catastrophic impact on the entire world, especially small-scale industry like OP-8 which have been facing the brunt of uncertainty looming around the world economic structure since the onset of COVID-19. Hence, Commission may consider waiving of levy of any penalty upon OP-8 and its individuals.
19. M/s Micro Engineers and Mr. Salimuddin
19.1 There is no evidence in the DG Report which may even remotely connect OP-9 or Mr. Salimuddin to the alleged cartel. OP-9 and Mr. Salimuddin have been falsely implicated in the present case on the basis of mere suspicion and conjectures by the DG, without any application of mind to the facts, statements, e-mails, WhatsApp communications and documents on record.
19.2 OP-9 had received approval for participation in Tenders of Railways as Part-II Vendor for HPPA Bushes/ SLPR Bushes on 09.09.2015 from RDSO. It had participated only in 2 small tenders for HPPA bushes/ SLPR bushes concerning Purchase Orders (‘PO’) dated 09.03.2016 and 15.03.2016. However, as it incurred losses in the two (2), contemplating further losses, it stopped manufacturing HPPA bushes/ SLPR bushes and participating in railway tenders from the 2nd half of 2016. RDSO, on its own as per its rules, and without any application from OP-9, extended the validity of approval granted to OP-9 till 08.09.2020 vide letter dated 17.07.2017. However, OP-9 did not participate in any railway tender for HPPA bushes/ SLPR bushes between 2nd half of 2016 and 2020 or beyond.
19.3 The DG has simply implicated OP-9 and Mr. Salimuddin on the basis of certain e-mails marked to them. However, OP-9 could not have prevented any other party to send any such e-mail to OP-9. None of such e-mails were ever replied to by or on behalf of OP-9. None of the e-mails were ever even acted upon by OP-9. OP-9 did not receive any P.O. from Railways post 15.03.2016 which itself shows that none of such e-mails marked to OP-9 were ever relevant to it.
20. Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.), Mr. Luv Kumar and Mr. R.K. Singh
20.1 OP-10 and its individuals have filed lesser penalty application before the Commission admitting to their limited participation in the cartel arrangement and as such, they have no objections to the findings contained in the investigation report.
20.2 OP-10 and its individuals, as lesser penalty applicant, have provided full, true and vital disclosures to assist the investigation and they have extended full cooperation as well. They have fulfilled all conditions set out in Section 46 of the Act and the provisions of the LPR. The admissions of individuals of OP-10 have been used and relied upon by the DG in its investigation report. As part of their lesser penalty application, OP-10 and its individuals have provided comprehensive details of the relevant market, vendors, products concerned, price/ rates quoted, formation and mode of operation of cartel etc. with supporting documents and meticulously compiled data represented in the form of tables, charts/ graphs in order to provide maximum aid to the investigation. The DG has also relied upon such information and data supplied by OP-10 and its individuals. As such, OP-10 and its individuals ought to be granted full benefit of lesser penalty and no penalty ought to be imposed upon them.
20.3 OP-10 is an MSME and a small market player in the relevant market. Its market share was 3.97% in 2016-17, 8.8% in 2017-18, 6.83% in 2018-19, 3.18% in 2019-20 and 2.15% in 2020-21 which differs from and is far less beneficial than the share allocated to it in the cartel arrangement. The actual amounts received by OP-10 were miniscule and not as per the cartel arrangement. OP-10 mostly had a passive role in the cartel activity which is clear from the investigation report which clearly shows that very limited correspondences were exchanged by the individuals of OP-10 in comparison to other parties.
20.4 OP-10 and its individuals have ceased to participate in the cartel and have also put appropriate structures in place to effectively implement Competition Law Compliance policies in future.
20.5 The COVID-19 pandemic has had disastrous impact on small scale businesses like OP-10. Hence, any penalty decided to be imposed upon OP-10 ought to be waived off. This has also been the recent trend of the Commission in various other matters.
21. Skylark Projects Pvt. Ltd. and Mr. Shirish Tapuriah
21.1 No submissions were filed on behalf of OP-11, and neither anyone appeared on behalf of OP-11.
Analysis:
22. The Commission has perused the applications seeking lesser penalty filed by OP-3, OP-1, OP-7 and OP-10 under Section 46 of the Act, the investigation report submitted by the DG and the evidences collected by the DG, the suggestions/ objections to the DG Report and written arguments filed by the parties, and also heard the oral arguments made by the respective learned counsel representing the parties in the matter.
23. The Commission notes that in the present matter, allegations relate to cartelisation in the Informant’s bidding process with respect to the Impugned Tender issued by the Indian Railways, for HPPA Brake Bushes and/ or SLPR Brake Bushes.
24. From the DG Report, it is noted that Brake Bushes are spherical linings used in bush holders of brake hanger of railway coaches for reducing friction while connecting the hanger to the Chassis and Brake Shoe. The DG has noted that passenger coaches earlier made by the Indian Railways had braking system which used Bronze Bushes. Thereafter, Brake Bushes made out of acetal, nylon and lastly Phenolic Bushes were used. However, in 2004-05, the Indian Railways initiated field trials with SLPR Brake Bushes and since the same gave promising results, Indian Railways gave approval to SLPR Bushes and divided Brake Bushes Kit into two parts – Brake Bushes for critical locations and Brake Bushes for non-critical locations. SLPR Bushes were approved for critical locations and Phenolic Bushes continued to be used for non-critical locations. Ultimately, due to poor performance of Phenolic Bushes, SLPR Bushes were approved for all locations despite their high cost. Simultaneously, trials were also approved for non-critical locations in HPPA Bushes. Thereafter, the Indian Railways passed an order to procure SLPR Bushes and HPPA Bushes as alternates to each other depending on the price that the lowest bidder was offering.
25. From the evidence on record, it is noted that SLPR Bushes are manufactured by three OPs i.e. OP-1, OP-3 and OP-11 while HPPA Bushes are manufactured by 10 OPs i.e. all the OPs except OP-11. Thus, evidently, all the OPs are engaged in the manufacture and supply of HPPA Bushes and/ or SLPR Bushes to the Indian Railways, though OP-9 which started the manufacture of HPPA bushes in 2012-13 did not continue in such line of activity for too long. Hence, since all the OPs have been engaged in identical or similar trade of goods, their alleged cartel conduct shall be analysed by the Commission in terms of Section 3(3) of the Act.
26. The Indian Railways, in order to ensure reliability, availability and safe working of Railway assets, follows the practice of maintaining lists of approved vendors for certain specific items. It is noted from the DG Report that SLPR Bushes and HPPA Bushes were two of such items. Research Designs and Standards Organization (‘RDSO’) is the nodal agency of the Indian Railways for vendor approval. It maintains two lists – of Part I vendors and of Part II vendors. RDSO approved vendors included in Part I are eligible for regular supply to the Indian Railways and for getting an order for full quantity of tenders floated by the Indian Railways, whereas vendors approved and included in Part II are eligible for developmental order and for getting an order for part quantity (up to 25% only). For SLPR Bushes and HPPA Bushes, the RDSO approved vendors along with their timelines are as follows:
| Manufacturer | Date of approval as Part II source | Date of approval as Part I source |
| OP-3 | 21.07.2009 (SLPR)
14.09.2016 (HPPA) |
05.04.2013 (SLPR)
19.12.2017 (HPPA) |
| OP-1 | 01.09.2009 (SLPR)
29.09.2017 (HPPA) |
12.06.2015 (SLPR)
– |
| OP-11 | 04.09.2012 (SLPR) | – |
| OP-4 | 07.09.2009 (HPPA) | 20.11.2013 (HPPA) |
| OP-5 | 19.01.2010 (HPPA) | 12.06.2017 (HPPA |
| OP-2 | 19.01.2010 (HPPA) | 01.05.2015 (HPPA) |
| OP-8 | 22.01.2016 (HPPA) | 23.08.2019 (HPPA) |
| OP-10 | 16.07.2014 (HPPA) | 24.05.2017 (HPPA) |
| OP-7 | 06.03.2012 (HPPA) | 27.05.2014 (HPPA) |
| OP-6 | 01.09.2016 (HPPA) | 01.03.2019 (HPPA) |
| OP-9 | 01.01.2016 (HPPA) | – |
27. In the above background, the Commission shall analyse as to whether there was any cartelisation in the Informant’s bidding process between the OPs, with respect to the Impugned Tender and/ or other tenders issued for HPPA Bushes/ SLPR Bushes.
28. From the DG Report, it is first of all noted that the bids for SLPR Bushes/ HPPA Bushes quoted by the two original OPs i.e. OP-1 and OP-2, in several tenders across different Railway Zones including North Western Railway, Central Railway and South Western Railway, were as under:
| S. No. | Tender No. |
Tender floated by | Opening date |
Participating Company/ Firm | Product | Price Quoted (₹) |
| 1. | 30162151-
A |
North Western Railways |
02.09.2016 | 1. OP-1 | SLPR | 5483.75 |
| 2. OP-2 | HPPA | 5483.75 | ||||
| 2. | 11162236 | Central Railways |
08.07.2016 | 1. OP-1 | SLPR | 2802.53 |
| 2. OP-2 | HPPA | 2802.53 | ||||
| 3. | 30161250 | South Western Railways |
14.07.2016 | 1. OP-1 | SLPR | 6787.07 |
| 2. OP-2 | HPPA | 6787.07 | ||||
| 4. | 38172236 | Central Railways |
10.07.2017 | 1. OP-1 | SLPR | 2774.1 |
| 2. OP-2 | HPPA | 2774.1 |
From the above, it is observed that though OP-1 and OP-2 were based out of different geographical locations i.e. Kolkata and Daman respectively, the prices quoted by them to the Railways, that too for different substitutable products (i.e. HPPA Bushes and SLPR Bushes) requiring different raw materials, were exactly the same.
29. Hence, though in the reference, price parallelism by OP-1 and OP-2 was alleged, however, the DG, during investigation, went into a detailed analysis of the bids quoted by the various bidders in various Railway tenders issued by various Railways Zones for SLPR Bushes/ HPPA Bushes.
30. From an analysis of the tender quotations made by the various bidders for SLPR Bushes/ HPPA Bushes in different Railways Zones, the following instances of price parallelism were also found:
| S. No. | Tender No. |
Tender floated by | Opening date |
Participating Company/ Firm | Price Quoted (₹) |
| 1. | 04171074 | East Central Railways |
07.11.2017 | 1. S.K. Plasto | 3990 |
| 2. OP-8 | 4731.3 | ||||
| 3. OP-3 | 4410 | ||||
| 4. OP-1 | 5696.25 | ||||
| 5. OP-7 | 5428.5 | ||||
| 6. OP-2 | 5755.05 | ||||
| 7. OP-5 | 5806.5 | ||||
| 8. OP-4 | 5755.05 | ||||
| 9. OP-11 | 5985 | ||||
| 10. OP-6 | 5475.75 | ||||
| 2. | 3016001 | North Frontier Railways |
22.08.2016 | 1. OP-3 | 4052.43 |
| 2. OP-1 | 5370.23 | ||||
| 3. OP-7 | 5509.85 | ||||
| 4. OP-2 | 5509.85 | ||||
| 5. OP-5 | 5398.05 | ||||
| 6. OP-4 | 5843.12 | ||||
| 7. Puran | 6065 | ||||
| 8. OP-10 | 5238.89 | ||||
| 3. | 30161156 | West Central Railways |
25.10.2016 | 1. OP-3 | 3106.65 |
| 2. OP-1 | 4674.6 | ||||
| 3. OP-2 | 4359.13 | ||||
| 4. OP-5 | 4307.31 | ||||
| 5. OP-4 | 4729.23 | ||||
| 6. OP-7 | 4359.13 | ||||
| 7. OP-6 | 3439 | ||||
| 8. OP-10 | 4160.39 | ||||
| 9. OP-8 | 4249.54 | ||||
| 4. | 30161157-
A |
West Central Railways |
28.10.2016 | 1. OP-3 | 1200.11 |
| 2. OP-1 | 1947.75 | ||||
| 3. OP-2 | 1811.96 | ||||
| 4. OP-5 | 1793.04 | ||||
| 5. OP-4 | 1975.29 | ||||
| 6. OP-7 | 1811.96 | ||||
| 7. OP-6 | 1769.5 | ||||
| 8. OP-10 | 1811.96 | ||||
| 5. | 30161155 | West Central Railways |
21.07.2017 | 1. OP-3 | 3578.4 |
| 2. OP-1 | 4509.75 | ||||
| 3. OP-2 | 4507.65 | ||||
| 4. OP-5 | 4551.75 | ||||
| 5. OP-4 | 4637.85 | ||||
| 6. OP-10 | 4637.85 | ||||
| 6. | 30181157 | West Central Railways |
26.07.2018 | 1. OP-3 | 2007.6 |
| 2. OP-1 | 1806 | ||||
| 3. OP-2 | 2205 | ||||
| 4. OP-5 | 2107.35 | ||||
| 5. OP-4 | 2289 | ||||
| 6. OP-10 | 2110.5 | ||||
| 7. OP-6 | 1575 | ||||
| 8. OP-8 | 1774.5 | ||||
| 9. OP-11 | 2415 | ||||
| 1. OP-7 | 2110.5 |
From the above data, it is clearly depicted that the other OPs, apart from OP-1 and OP-2, were also quoting prices which were identical to one or the other OPs in various Railway tenders issued by different Railways Zones. In fact, the DG has pointed out that in certain instances, OPs viz. OP-4, OP-7, OP-10 and OP-5, who were based out of different geographical locations at Mumbai, Jaipur, Ghaziabad and Vapi (Gujarat) respectively, had quoted identical prices for the same products though separated by inter-state borders.
31. In addition, it has also been pointed out in the DG Report that some OPs, based in the same city and state, manufacturing the same product, had also at times quoted substantially different prices in the same tender, for which there seems to be no justification.
Tender No. 61160449 floated by Northern Railway and opened on 23.12.2016
| S. No. | Company/ Firm | Product | Price (₹) |
| 1. | OP-1 | SLPR | 4,090 |
| 2. | OP-11 | SLPR | 4,750 |
| 3. | OP-3 | SLPR | 8,000 |
Tender No. 3018250 floated by Southern Railway and opened on 17.05.2018
| S. No. | Company/ Firm | Product | Price (₹) |
| 1. | OP-1 | SLPR | 7,075 |
| 3. | OP-3 | SLPR | 5,052 |
32. Besides, the DG has also gathered information about the OPs from the RDSO, from which it is noted that there were two groups (Group I and II) which were operated by common directors/ partners:
| Group I | ||
| S. No. | Company/ Firm | Director/ Partner |
| 1. | OP-4 | i. Mr. Bhupesh Bafna
ii. Ms. Anju Bafna |
| 2. | OP-5 | i. Mr. Bhupesh Bafna
ii. Ms. Shailesh Bafna |
| 3. | OP-2 | i. Mr. Bhupesh Bafna |
–
| Group II | ||
| S. No. | Company/ Firm | Director/ Partner |
| 1. | OP-3 | i. Mr. Alok Somani
ii.Mr. Parikshit Somani |
| 2. | OP-1 | i. Ms. Manjushree Somani
ii.Ms. Tanushree Somani (Ms. Manjushree Somani has authorised her husband Mr. Alok Somani to take business decisions) |
From the above, it is observed that three OPs i.e. OP-4, OP-5 and OP-2, were controlled by Mr. Bhupesh Bafna as Partner/ Director while two other OPs viz. OP-3 and OP-1, were controlled by Mr. Alok Somani as Partner/ authorised representative. The DG has found that these sets of entities were also declared as sister companies before the RDSO and yet they were participating in the same tenders for the same products as competitors.
33. In regard to these sets of sister entities, the Commission also notes from the details of
IP addresses from which bids were filed by them in various railway tenders that in at least the following 34 tenders for HPPA Bushes/ SLPR Bushes, bids were submitted by them from a common IP address:
| S. No. | Tender No. | Tender floated by | Opening date | Common IP addresses |
| 1. | 30162151-A | North Western Railways | 02.09.2016 | i. OP-2 and OP-4
ii. OP-1 and OP-3 |
| 2. | 30181250 | South Western Railways | 17.05.2018 | OP-1 and OP-3 |
| 3. | 51191329 | Northern Railways | 14.05.2019 | OP-1 and OP-3 |
| 4. | 04184022 | East Central Zone | 18.07.2018 | OP-1 and OP-3 |
| 5. | 30182151-C | North Western Zone | 10.04.2018 | OP-1, OP-3 and OP-11 |
| 6. | 30182151-D | North Western Zone | 04.09.2018 | OP-1 and OP-3 |
| 7. | 30182151-E | North Western Zone | 19.04.2018 | OP-1 and OP-3 |
| 8. | 57160025 | Southern Railways | 17.08.2016 | OP-2, OP-4 and OP-5 |
| 9. | 51191329 | Northern Railways | 14.05.2019 | OP-2, OP-4 and OP-5 |
| 10. | 0191536 | South Central Railways | 19.03.2019 | OP-2 and OP-5 |
| 11. | 30191534 | South Central Railways | 20.03.2019 | OP-2 and OP-5 |
| 12. | 301160861 | RCF Railways | 27.03.2019 | OP-2, OP-4 and OP-5 |
| 13. | 2165809B | South Western Railways | 31.03.2019 | OP-2, OP-4 and OP-5 |
| 14. | 70160069 | Southern Railways | 23.03.2017 | OP-2 and OP-5 |
| 15. | 07181538 | Northern Railways | 22.03.2019 | OP-2, OP-4 and OP-5 |
| 16. | 2165809A | South Western Railways | 20.03.2017 | OP-2, OP-4 and OP-5 |
| 17. | 2301160836 | RCF | 16.03.2017 | OP-2, OP-4 and OP-5 |
| 18. | 3165426 | North Western Railways | 20.03.2017 | OP-2, OP-4 and OP-5 |
| 19. | 30171520 | South Central Railways | 04.04.2017 | OP-2, OP-4 and OP-5 |
| 20. | L2165808 | South Western Railways | 09.03.2017 | OP-2, OP-4 and OP-5 |
| 21. | L2165809 | South Western Railways | 09.03.2017 | OP-2, OP-4 and OP-5 |
| 22. | 30163136 | South Eastern Railways | 23.03.2017 | OP-2 and OP-5 |
| 23. | 30171534 | South Central Railways | 04.04.2017 | OP-2 and OP-5 |
| 24. | 2301160806 | RCF | 06.03.2017 | OP-2, OP-4 and OP-5 |
| 25. | 301160616-
A |
RCF | 03.03.2017 | OP-2, OP-4 and OP-5 |
| 26. | 30171156 | West Central Railways | 28.03.2017 | OP-2, OP-4 and OP-5 |
| 27. | 30171157 | West Central Railways | 28.03.2017 | OP-2, OP-4 and OP-5 |
| 28. | 2150277A | North Eastern Railways | 15.03.2017 | OP-2, OP-4 and OP-5 |
| 29. | 74160058 | Southern Railways | 04.11.2016 | OP-2 and OP-5 |
| 30. | 03162030-A | South East Central Railways | 24.10.2016 | OP-2, OP-4 and OP-5 |
| 31. | 03160109 | South Western Railways | 20.10.2016 | OP-2, OP-4 and OP-5 |
| 32. | 30161157-A | West Central Railways | 28.10.2016 | OP-2, OP-4 and OP-5 |
| 33. | 30161156 | West Central Railways | 25.10.2016 | OP-2, OP-4 and OP-5 |
| 34. | 30163627 | South Central Railways | 18.10.2016 | OP-2, OP-4 and OP-5 |
34. Further, in respect of sister concerns OP-2, OP-4 and OP-5, from the login details including user ID, user name, IP address, login date and time, logout date and time and caller ID details procured by the DG from the service provider, the Commission notes that all bids in respect of these three entities were filed from a common address in Mumbai by a common user, even though the entities displayed their registered offices in different states:
| S No. |
ID | User | IP Address | Login Date & time |
Logout Date & time | Caller ID |
| 1 | 9958609 | jethalal | 45.117.250.242 | 3/21/2017 12:55:39 PM |
3/21/2017 7:41:33 PM |
90:6C:AC: 3A:49:A1 |
| 2 | 10025230 | jethalal | 180:148:62:71 | 04-01-2017 14:32 | 04-01-2017 22:32 | 90:6C:AC :3A:49:A1 |
| 3 | 10022859 | jethalal | 180:148:62:71 | 04-01-2017 13:22 | 04-01-2017 14:31 | 90:6C:AC :3A:49:A1 |
| 4 | 9995854 | jethalal | 180:148:62:71 | 3/27/2017 5:11:19 PM |
3/28/2017 1:11:19 AM |
90:6C:AC: 3A:49:A1 |
| 5 | 9993849 | jethalal | 180:148:62:71 | 3/27/2017 10:12:57 AM | 3/27/2017 5:11:08 PM |
90:6C:AC :3A:49:A1 |
| 6 | 9942386 | jethalal | 182.237.163.163 | 3/18/2017 12:53:45 PM |
3/18/2017 8:53:45 PM |
90:6C:AC :3A:49:A1 |
| 7 | 9952993 | jethalal | 182.237.163.163 | 3/20/2017 12:55:08 PM |
3/20/2017 8:55:08 PM |
90:6C:AC :3A:49:A1 |
| 8 | 9227877 | jethalal | 58.146.103.255 | 11/17/2016 3:52:59 PM |
11/17/2016 11:53:01 PM |
00:22:6B :3D:E9:A3 |
| 9 | 9238325 | jethalal | 58.146.103.255 | 11/19/2016 3:56:32 PM |
11/19/2016 11:56:33 PM |
00:22:6B :3D:E9:A3 |
| 10 | 9236108 | jethalal | 58.146.103.255 | 11/19/2016 7:55:56 AM |
11/19/2016 3:55:58 PM |
00:22:6B :3D:E9:A3 |
| 11 | 9292477 | jethalal | 58.146.103.255 | 11/30/2016 9:59:13 AM |
11/30/2016 5:59:15 PM |
00:22:6B :3D:E9:A3 |
| 12 | 9297471 | jethalal | 58.146.103.255 | 12-01-2016 10:01 | 12-01-2016 18:01 | 00:22:6B :3D:E9:A3 |
| 13 | 9426534 | jethalal | 58.146.103.255 | 12/22/2016 6:44:55 AM |
12/22/2016 2:44:55 PM |
90:6C:AC :3A:49:A1 |
| 14 | 10721206 | jethalal | 58.146.103.247 | 08-03-2017 08:15 | 08-03-2017 10:41 | 90:6C:AC: 3A:49:A1 |
| 15 | 10719394 | jethalal | 58.146.103.247 | 08-02-2017 16:21 | 08-03-2017 00:15 | 90:6C:AC: 3A:49:A1 |
| 16 | 10721291 | jethalal | 58.146.103.247 | 08-03-2017
10:43 |
08-03-2017
11:11 |
90:6C:A C:3A:49:A1 |
| 17 | 9911803 | jethalal | 182.237.160.197 | 3/14/2017 11:24:22 AM | 3/14/2017 7:24:23 PM |
90:6C:A C:3A:49:A1 |
| 18 | 9152803 | jethalal | 202.177.252.40 | 11-03-2016 12:02 | 11-03-2016 20:02 | 0C:D2:B5 :4F:D0:79 |
| 19 | 9120214 | jethalal | 202.177.252.40 | 10/27/2016 1:38:22 PM |
10/27/2016 9:38:22 PM |
0C:D2:B 5:4F:D0:79 |
| 20 | 9072945 | jethalal | 202.177.252.40 | 10/19/2016 12:52:19 PM |
10/19/2016 8:52:19 PM |
0C:D2:B 5:4F:D0:79 |
35. As far as the other OPs are concerned, while analysing different tenders across India, it is observed that in the following tenders for HPPA Bushes/ SLPR Bushes, few OPs had submitted bids in close proximity to each other in terms of timing:
Tender No. 4107160179 opened from 06.04.2016 to 18.05.2016
| S. No. | Company/ Firm | Bid filed date and time |
Revised | Price quoted (₹) |
| 1. | OP-1 | 13.05.2016 16:22 Revised | 18.05.2016
10:52 |
Rs. 82,90,000 74,61,000 (Revised) |
| 2. | OP-7 | 18.05.2016 10:06 | – | 79,06,057 |
| 3. | OP-10 | 18.05.2016 10:10 | – | 76,95,126 |
| 4. | OP-3 | 18.05.2016 10:38 | – | 71,29,400 |
| 5. | OP-2 | 17.05.2016 10:55 Revised |
18.05.2016
10:06 |
78,49,022
76,72,975 (Revised) |
In the above tender, the parties had either filed their bids on 18.05.2016 or revised their prices on 18.05.2016. Further, all the parties had filed their bids between 10:06 to 10:55 a.m.
Tender No. 04170921 of Southern Railways opened on 17.07.2017
| S. No. | Company/ Firm | Bid filed date and time | Price quoted (₹) |
| 1. | OP-1 | 15.07.2017 15:12 | 6,718.95 |
| 2. | OP-5 | 15.07.2017 07:06 | 7,122.15 |
| 3. | OP-10 | 15.07.2017 17:40 | 7,265.55 |
| 4. | OP-3 | 15.07.2017 16:37 | 5,598.60 |
| 5. | OP-2 | 15.07.2017 16:43 | 6,714.23 |
| 6. | OP-4 | 15.07.2017 17:32 | 7,255.50 |
In the above tender also, all bids were filed on 15.07.2017 even though the last date for filing of tender was 17.07.2017.
36. In the view of the Commission, such close proximity of date and timings in submission of bids by the OPs cannot be a mere co-incidence. Hence, from the above evidences, there appears to be some sort of collusion not only between OP-1 and OP-2, but also amongst 06 other OPs as well, with respect to the tenders quoted issued by the Indian Railways for the procurement of HPPA Bushes/ SLPR Bushes.
37. In order to understand the exact nature of such collusion, the Commission proceeds to analyse the various e-mail communications/ WhatsApp communications exchanged between the following key representatives of the OPs, with regard to the various tenders issued by the Indian Railways for the procurement of HPPA Bushes/ SLPR Bushes:
| 1. | OP-1 | Mr. Alok Somani |
| Mr. Amit Somani | ||
| 2. | OP-3 | Mr. Alok Somani |
| Mr. Amit Somani | ||
| Mr. Tarkeshwar Thakur | ||
| 3. | OP-2 | Mr. Bhupesh Bafna |
| 4. | OP-4 | Mr. Bhupesh Bafna |
| 5. | OP-5 | Mr. Bhupesh Bafna |
| Ms. Shanta Sohoni | ||
| 6. | OP-6 | Mr. Vikas Agarwal |
| Mr. Ram Chandra | ||
| 7. | OP-7 | Mr. Vishal Baid |
| Mr. Rajeev Dudhani | ||
| Mr. Rajesh Nair | ||
| 8. | OP-8 | Mr. Vishnu NM |
| Mr. Harsha Gumballi | ||
| Mr. A Venkata Subramanyam | ||
| 9. | OP-9 | Mr. Salimuddin |
| 10. | OP-10 | Mr. Luv Kumar |
| Mr. R.K Singh | ||
| 11. | OP-11 | Mr. Shirish Tapuriah |
38. First of all, communications exchanged between the OPs with respect to the Impugned Tender shall be analysed. It is noted that Tender No. 30.16.2151 was floated by North Western Railway on 17.05.2016 calling RDSO approved sources for procurement of 4108 sets of HPPA/ SLPR bushes. Prices quoted therein were as follows:
| Bidding by RDSO approved Part I sources | ||
| Vendor | Item | Bid Price (₹) |
| OP-1 | SLPR | 4,550 |
| OP-2 | HPPA | 4,563.75 |
| Bidding by RDSO approved Part II Sources | ||
| Vendor | Item | Bid Price (₹) |
| OP-3 | HPPA | 3,299.99 |
| OP-8 | HPPA | 4,540.30 |
39. As the lowest offer was received from Part II source OP-3, it was considered by the Informant for 15% of net procurable quantity i.e. 602 sets. Next higher offer was also from Part II source OP-8, hence, it was also considered for 10% of net procurable quantity i.e. 402 sets at the counter offer of rate quoted by OP-3. However, it did not accept. Lowest offer from Part I source was from OP-1 which was considered for bulk order. Next higher offer was from Part I source OP-2 which was also considered for bulk order at counter offer of OP-1 as per the splitting clause. However, during negotiations, neither reduced the price. As such, order could only be placed on OP-3 for 602 sets and remaining quantity had to be retendered.
40. Revised Tender No. 30.16.2151-A was opened on 02.09.2016. Details of bids quoted in the same were as follows in which both Part I sources quoted identical prices:
| Bidding by RDSO approved Part I sources | ||
| Vendor | Item | Bid Price (₹) |
| OP-1 | SLPR | 5,483.75 (L1) |
| OP-2 | HPPA | 5,483.75 (L1) |
| Bidding by RDSO approved Part II Sources | ||
| Vendor | Item | Bid Price (₹) |
| OP-3 | HPPA | 4,006.80 (L1) |
| OP-10 | HPPA | 4,674.60 (L2) |
| OP-6 | HPPA | 4,999.43 (L3) |
| OP-5 | HPPA | 5,398.16 (L4) |
41. In regard to this re-tender, it is noted from the DG report that the following e-mails were exchanged between the parties:
(i) E-mail dated 03.06.2016 sent by Ms. Shanta Sohoni of OP-5 to Mr. Alok Somani of OP-1/ OP-3, Mr. Bhupesh Bafna of OP-2/ OP-4/ OP-5, and OP-7:
“As discussed, allotment of Brake gear bushes is enclosed herewith.”
(ii) Response of Mr. Alok Somani of OP-1/ OP-3 vide e-mail dated 03.06.2016: “Are these basic prices or all-inclusive prices”
(iii) Reply by Ms. Shanta Sohoni of OP-5 vide e-mail dated 03.06.2016:
“These are basic rates ED @ 6% extra + CST/VAT @ 5% or 5.5% extra whichever is applicable. Non-allotties will quote 7-8% higher than PLR.”
(iv) E-mail dated 04.08.2016 sent by Ms. Shanta Sohoni of OP-5 to the OPs: “Subject: Allotment for New Bush tenders
S.
|
Rly. |
Tender No. |
Due Dt. |
Item |
Tender Qty. |
75% Qty.
|
Rate |
Value |
PPPL |
BBC |
20. |
NWR |
301621
|
02/09/16 |
Kit for Brake Gear
|
3506 |
2630 |
4927 |
12955547 |
6477773 |
6477773” |
42. The above chain of e-mails exchanged between OP-1/ OP-3, OP-2/ OP-4/ OP-5, and OP-7 shows that Ms. Shanta Sohoni of OP-5 had sent an e-mail dated 03.06.2016 to the other OPs allotting there-amongst, Brake Gear Bushes tender. In response to such allotment e-mail, Mr. Alok Somani of OP-1/ OP-3 sought confirmation as to whether the price agreed in the table was the basic price or all-inclusive price. To that, Ms. Shanta Sohoni responded stating that it was the basic price wherein Excise Duty @ 6% extra + CST/ VAT @ 5% was to be added. Thereafter, as per the e-mail dated 04.08.2016 of Ms. Shanta Sohoni of OP-5, the rate decided to be quoted by OP-1 and OP-2 in this re-tender was ₹4,927.
43. The actual financial bids received in this re-tender, as submitted by the Informant, are as follows:
| Supplier Name/ Rank |
Basic Rate/ Unit (₹) | Excise duty | S.T Type-S.T Rate (%) | Total All-inclusive Value (₹) |
| Moulded Fibreglass Kolkata (L-5) |
4927.00 | Maximum Applicable –6% |
CST Extra-5 | 5483.75 |
| Power Mould Daman (L-5) |
5483.75 | ED Inclusive | CST
Inclusive-5 |
5483.75 |
44. From the above, it is evident that in the Impugned Tender, OP-2 had cleverly quoted an all-inclusive price in the basic rate column of ₹5,483.75 while OP-1 had quoted ₹4,927 as agreed in the allocation table which when summed up with 6% ED and 5% CST was ₹5,483.75. Further, basic rate plus Excise Duty & CST and all-inclusive rates were also identical for both the companies. Therefore, it is evident that there was a clear understanding amongst the parties OP-1 to OP-5 and OP-7 in determination of prices and allocation of market in regard to the Impugned Tender, which is in contravention of the provisions of Section 3(3)(a), 3(3)(c) and 3(3)(d) of the Act.
45. Further, it is noted from the DG Report that not only with respect to the Impugned Tender, but also with respect to other tenders issued by the different zones of the Indian Railways from FYs 2016-17 to 2019-20 for the procurement of HPPA Bushes/ SLPR Bushes, various e-mail communications were exchanged between the OPs relating to determination of prices, allocation of market, and rigging of bids. The same are depicted in tabulated form, as under:
[SPACE INTENTIONALLY LEFT BLANK]
Content of E-mail and Observation
46. From the aforesaid detailed evidences, the modus operandi of the cartel operating between the OPs is very clear. The suppliers of HPPA/ SLPR bushes communicated with each other through e-mails or WhatsApp communications from at least April 2016 to May 2020. Ms. Shanta Sohoni was responsible for co-ordination amongst the members of cartel. Usually, an e-mail was circulated from Ms. Shanta Sohoni, an employee of OP-5 (and also on behalf of OP-2 and OP-4) to the other OPs allocating forthcoming tenders in total for the period ahead and also informing and discussing the prices to be quoted. These OPs included OP-3 (including OP-1), OP-6, OP-7, OP-8, OP-9 and OP-10.
47. Ms. Shanta Sohoni kept record of all forthcoming tenders of Indian Railways updated online on Indian Railways E-procurement System (‘IREPS’). She allocated tenders on the basis of allotment value (a decided percentage (%) distribution of tenders) of each member which was maintained similar to an account statement. In this regard, allocation tables were maintained which also mentioned earlier shortage/ excess value and allotted value with net excess. Therefore, tenders were allocated in compliance to the allotment share. There were also instances where tenders were allocated to more than one member/ vendor/ supplier as agreed. In such cases, members mutually agreed to a price before filing the bid. Ms. Shanta Sohoni communicated the basic price at which allocated vendor should quote in the allotted tender. Thereafter, the vendors communicated the price based on their respective additional taxes and arrived at a mutually agreed price for submitting the bids over e-mails. As a next step, Ms. Shanta Sohoni instructed the members via e-mail that non-allottee vendors should quote prices that are 8-10% higher than basic prices agreed by members. With course of time, various players/ vendors kept on adding to mutually agreed agreement/ pool and share of each member was adjusted accordingly, in order to accommodate new players.
48. Existence of such cartel pool/ arrangement between the OPs was also acknowledged by their various representatives before the DG. Mr. Alok Somani of OP-1/ OP-3, in his statement recorded before the DG, admitted that he was approached by other manufacturers to maintain prices and he was a part of cartel. Mr. Bhupesh Bafna as well as Ms. Shanta Sohoni of OP-2/ OP-4/ OP-5 also submitted before the DG that an informal market understanding existed amongst the existing approved bidders that they should all have reasonable rate and get reasonable share of overall business to recover investments. Mr. Vikas Agarwal of OP-6 in his statement also stated that he was approached by other manufacturers and joined the group of other RDSO approved manufacturers for a limited period up to 20.03.2019 for providing supporting bid quotations. However, he stated that the company did not benefit much from the agreement as it hardly received any orders. In his submission before the DG, Mr. Vishal Baid of OP-7 also admitted that since 2016, authorised persons of OP-7 have been communicating with other manufacturers. He submitted that Mr. Rajeev Dudhani, Consultant/ Advisor for OP-7 was working as a commission/ liaison agent for railways business and he was responsible for marketing and quality control for HPPA Bushes orders. Further, he submitted that Mr. Rajesh R., Senior Manager, Operations at OP-7 was the authorised person for filing bids on behalf of OP-7 in tenders floated by Railways for HPPA Bushes. In this regard, Mr. Rajesh R., in his submission, stated that he communicated with other manufacturers of HPPA (and SLPR) Bushes to discuss and finalise bids to be submitted for tenders of Indian Railways. OP-9, in its submission before the DG, also acknowledged the receipt of e-mails from OP-4. Mr. Luv Kumar of OP-10 also, before the DG, admitted that all the approved vendors in market for supply of HPPA bushes were participating in a cartel. He also admitted to have been part of cartel since 2014. He admitted that there were two physical meetings during 20142020. As per Mr. Luv Kumar, he attended first meeting in 2016 at JW Marriott, Aero city, Delhi, which was called by Polyset Group for discussing market share of each vendor pursuant to inclusion of Black Burn Group in the cartel. Hence, it is observed that more or less, representatives of almost all the OPs (OP-1, OP-2, OP-3, OP-4, OP-5, OP-6, OP-7, OP-8, and OP-10) have admitted to the existence of the abovesaid cartel arrangement with respect to HPPA Bushes/ SLPR Bushes.
49. With respect to OP-9, it is noted that three e-mails dated 11.04.2016, 16.04.2016 and 28.04.2016 were sent by Ms. Shanta Sohoni to various OPs including to OP-9 regarding allocation of forthcoming tenders. Allocation tables annexed with such e-mails show distribution of 10% share to OP-9. OP-9 has not even denied the receipt of such e-mails. In fact, in its submission before the DG, OP-9 has acknowledged that it has received such e-mails. Though in its suggestions/objections to the DG Report, OP-9 has submitted that it stopped manufacturing HPPA bushes/ SLPR bushes and participating in railway tenders from the 2nd half of 2016 and it never replied to such e- mails received, the Commission observes that there is nothing on record to show that OP-9 also objected to the sending of such e-mails to it by Ms. Shanta Sohoni. In this backdrop, the Commission finds the pleas urged by OP-9 of little significance and in the opinion of the Commission, the evidences on record establish that OP-9 was also a part of the cartel arrangement amongst the OPs.
50. With respect to OP-11, it is noted that though there seems to be no e-mails/ WhatsApp messages exchanged with OP-11 by the other OPs, however, the IP addresses from which the bids of OP-11 were filed in the railway tenders matched with OP-1. Also, in certain tenders, IP address also matched with OP-3. OP-11 was located in Kolkata as was OP-3. Further, the DG, from analysis of the sales turnover of OP-11, has noted that the annual turnover of OP-11 was negligible; yet the company participated in tenders quoting extremely high prices with rare chance of being allotted the tenders. Also, Mr. Alok Somani of OP-1/ OP-3 in his statement stated that OP-11 started business on his proposal and Mr. Shirish Tapuriah, ex-Director of OP-11 was a family friend. The companies were also sharing employees on the pretext of work experiences etc. Therefore, in the opinion of the Commission, OP-11 was also a part of the cartel arrangement which existed between the other OPs.
51. As far as OP-6 is concerned, it has submitted before the Commission that it was not a member of the association amongst the OPs for a major portion of the period in question and had reservations in forming or participating in this association. However, from the e-mail communications extracted above including several e-mails exchanged between OP-6 and the other OPs, the involvement of OP-6 in the cartel arrangement is well established.
52. Regarding certain pleas raised by OP-8 that it did not form part of the initial reference received in the matter; it had no commonality of IP addresses with other OPs etc., the Commission finds that such arguments made by OP-8 do not help its case. The involvement of OP-8 in the cartel arrangement between the OPs is well established from the e-mail communications extracted above, which include multiple e-mails exchanged by OP-8 with other OPs.
53. Further, it is noted that the OPs have argued that the cartel conduct of the OPs did not lead to any AAEC in the market as there were no entry barriers for new entrants, nor were competitors driven out of the market, nor prices increased for the Indian Railways.
54. In this regard, firstly, the Commission notes that the provisions of Section 3(1) of the Act not only proscribe the agreements which cause an AAEC in the market, but also forbid agreements which are likely to cause an AAEC in the market. Secondly, the Commission notes that once an agreement of the types specified under Section 3(3) of the Act is established, the same is presumed to have an AAEC within India. Thus, it is axiomatic to presume in the present matter that the impugned conduct of the parties has caused AAEC within India.
55. No doubt, as per the ratio of the decision given by the Hon’ble Supreme Court of India in the matter of Rajasthan Cylinders and Containers Ltd. v. Union of India and Others, 2018 (13) SCALE 493, the presumption of AAEC in a case involving contravention of the provisions of Section 3(3) of the Act can be rebutted by the parties by placing evidence to the contrary on record, however, it is noted that it is upon the contravening parties to rebut the presumption of AAEC by showing positive effects emanating from the cartel activity like accrual of benefits to the consumers (in the instant case, the Indian Railways), improvement in production or distribution of goods or provision of services, or promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services.
56. In this regard, the relevant excerpts of the Hon’ble Supreme Court decision in Rajasthan Cylinders (supra), are as follows:
“We may also state at this stage that Section 19 (3) of the Act mentions the factors which are to be examined by the CCI while determining whether an agreement has an appreciable adverse effect on competition under Section 3. However, this inquiry would be needed in those cases which are not covered by clauses (a) to (d) of sub-Section (3) of Section 3. Reason is simple. As already pointed out above, the agreements of nature mentioned in sub-Section (3) are presumed to have an appreciable effect and, therefore, no further exercise is needed by the CCI once a finding is arrived at that a particular agreement fell in any of the aforesaid four categories. We may hasten to add, however, that agreements mentioned in Section 3(3) raise a presumption that such agreements shall have an appreciable adverse effect on competition. It follows, as a fortiori, that the presumption is rebuttable as these agreements are not treated as conclusive proof of the fact that it would result in appreciable adverse effect on competition. What follows is that once the CCI finds that case is covered by one or more of the clauses mentioned in sub-section (3) of Section 3, it need not undertake any further enquiry and burden would shift upon such enterprises or persons etc. to rebut the said presumption by leading adequate evidence. In case such an evidence is led, which dispels the presumption, then the CCI shall take into consideration the factors mentioned in Section 19 of the Act and to see as to whether all or any of these factors are established. If the evidence collected by the CCI leads to one or more or all factors mentioned in Section 19 (3), it would again be treated as an agreement which may cause or is likely to cause an appreciable adverse effect of competition, thereby compelling the CCI to take further remedial action in this behalf as provided under the Act. That, according to us, is the broad scheme when Sections 3 and 19 are to be read in conjunction.”
57. The Commission notes that in the present matter, OP-1 and OP-3 have stated that development of SLPR Bushes by them and entry of OP-11 in the market amounts to improvement in production and distribution thereby rebutting AAEC. However, in view of the Commission, such development was not contingent upon or in any way linked to collusive arrangement between the OPs but the same would have taken place irrespective of such cartel conduct. As such, in view of the Commission, it can be presumed in the instant matter that the cartel arrangement between the OPs led to an AAEC in the market for HPPA Bushes/ SLPR Bushes within India. The OPs have been unable to show any positive effects emanating from their cartel activity like accrual of benefits to the consumers, improvement in production or distribution of goods or provision of services, or promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services, rather the collusive conduct of the OPs affected fair competition in the market. On a holistic evaluation of the submissions made by the parties and in light of the factors enumerated in Section 19(3) of the Act, the Commission is satisfied that in the present matter, the parties have not been able to dislodge the statutory presumption of AAEC, by adducing cogent evidence to the contrary, as required.
58. Hence, the Commission observes that there was a clear understanding between the OPs w.r.t. determination and revision of prices in regard to tenders floated by Railways for procurement of Brake Gear Bushes, which is in contravention of the provisions of Section 3(3)(a) of the Act. Further, there were also e-mails exchanged between the OPs where one OP can be seen pressuring another OP to quote only the decided prices and not lower and where OPs can be seen asking other OPs to withdraw their offers. This amounts to an act of controlling supply and market by regulating who and when shall supply the products, which is in contravention of the provisions of Section 3(3)(b) of the Act. There was also clear allocation of tenders amongst the OPs qualifying as sharing of market amongst them in terms of percentage with addition and reduction with each tender and in terms of monetary amount as well, wherein the balance sheet was displayed for each player, which is in contravention of the provisions of Section 3(3)(c) of the Act. However, looking at the modus operandi of the cartel and the evidences available on record, the Commission finds that conclusion of geographical allocation of market amongst the OPs cannot be reached, as concluded by the DG. Lastly, such modus operandi of the OPs amounts to bid-rigging in contravention of the provisions of Section 3(3)(d) of the Act by eliminating competition and manipulating the bidding process by forming a pool or cartel of vendors, even for developmental vendors (Part II vendors) who were entering into the market and were at the initial phases of manufacturing.
59. Though the OPs have also argued that they were forced to indulge into such pool arrangement and cartel activity due to the market structure, in order to avoid losses and get their fair share of business from the Indian Railways, the Commission is of the opinion that the same does not bestow a right upon the OPs i.e. the suppliers/vendors to collude together and fix prices, allocate quantities, and indulge into the illegal conduct of bid-rigging in violation of the provisions of the Act.
Liability under Section 48:
60. Now that contravention of the provisions of the Act by the OPs has been established, the Commission proceeds to determine in the subsequent paragraphs, the role and liability of the respective individuals of the OPs, in terms of Section 48 of the Act.
61. The DG has found the following individuals of the OPs liable in terms of Section 48 of the Act, for the anti-competitive conduct of their respective company:
| OP | Person | Liability u/s |
| OP-1 | Mr. Alok Somani | 48(1) |
| OP-3 | Mr. Alok Somani, Director | 48(1) and 48(2) |
| OP-2 | Mr. Bhupesh Bafna, Director | 48(1) and 48(2) |
| Ms. Shanta Sohoni, Employee | 48(2) | |
| OP-4 | Mr. Bhupesh Bafna, Partner | 48(1) and 48(2) |
| Ms. Shanta Sohoni | 48(2) | |
| OP-5 | Mr. Bhupesh Bafna, Partner | 48(1) and 48(2) |
| Ms. Shanta Sohoni | 48(2) | |
| OP-6 | Mr. Vikas Agarwal, Director | 48(1) and 48(2) |
| OP-7 | Mr. Vishal Baid, Director | 48(1) and 48(2) |
| Mr. Rajeev Dhudani, Consultant/ Advisor | 48(2) | |
| Mr. Rajesh R., Senior Manager, Operations | 48(2) | |
| OP-8 | Mr. Vishnu N.M., Managing Partner | 48(1) and 48(2) |
| Mr. Venkata Subramanyam, Managing Partner | 48(1) and 48(2) | |
| Mr. Harsha Gumballi, Manager (Admin) | 48(2) | |
| OP-9 | Mr. Salimuddin, Managing Partner | 48(1) |
| OP-10 | Mr. Luv Kumar, Director | 48(1) and 48(2) |
| Mr. R.K. Singh, Assistant Manager, Marketing | 48(2) | |
| OP-11 | Mr. Shirish Tapuriah, ex-Director | 48(1) and 48(2) |
62. The role and liability of each of them is discussed as follows:
(1) Mr. Alok Somani, Partner of Moulded Fibreglass Products and Director of Black Burn and Co. Pvt. Ltd.
63. The DG has noted that as per the records of the Registrar of Companies, Ministry of Corporate Affairs, OP-1 is an LLP which is managed by two partners i.e. Ms. Manjushree Somani and Ms. Tanushree Somani since 11.03.2015. Before the DG, Ms. Manjushree Somani submitted an Affidavit stating that she has no personal knowledge about transactions and business of OP-1 and her husband Mr. Alok Somani is responsible for all the decisions and day to day working of the firm. When confronted with such Affidavit, Mr. Alok Somani also acknowledged the same. Further, the DG has noted that Mr. Alok Somani is also one of the three directors in the private limited company i.e. OP-3.
64. In his statement before the DG, Mr. Alok Somani has admitted that he was approached by other manufacturers of HPPA Bushes/ SLPR Bushes, to maintain prices and he was a part of the cartel. Further, as detailed above, multiple e-mail communications to and fro the other OPs have been sent/ received by Mr. Alok Somani with respect to the cartel arrangement. Certain WhatsApp communications between Mr. Alok Somani and Mr. Bhupesh Bafna with respect to discussions on HPPA Bushes/ SLPR Tenders are also there.
65. Hence, in view of the above, the Commission finds Mr. Alok Somani liable in terms of both Section 48(1) and 48(2) of the Act, for the cartel conduct of OP-3 as well as OP-1.
(2) Mr. Bhupesh Bafna, Director of Polyset Plastics Private Ltd. and Partner of Power Mould and M/s Anju Techno Industries
66. The DG has noted that Mr. Bhupesh Bafna was one of the three Directors in private limited company i.e. OP-5. Further, the DG has noted that Mr. Bafna is also a partner in partnership firms, namely, OP-2 and OP-4, which Mr. Bafna has stated before the DG are sister entities of OP-5.
67. Mr. Bafna has acknowledged before the DG that an informal market understanding existed amongst the approved bidders of HPPA Bushes/ SLPR Bushes that they should all have reasonable rate and get reasonable share of overall business to recover investments. Further, as detailed above, multiple e-mail and WhatsApp communications are on record which show the involvement of Mr. Bhupesh Bafna in the cartel arrangement.
68. Hence, in view of the above, the Commission finds Mr. Bhupesh Bafna liable in terms of both Section 48(1) and 48(2) of the Act, for the cartel conduct of OP-5 as well as OP-2 and OP-4.
(3) Ms. Shanta Sohoni, Employee at Polyset Plastics Private Ltd.
69. The DG has noted that Ms. Shanta Sohoni was an employee at OP-5, who was also working on behalf of OP-2 and OP-4. She was the kingpin of the cartel who allocated forthcoming tenders amongst the OPs and informed them about the prices to be quoted. Ms. Sohoni was responsible for co-ordination amongst the members of the cartel. As detailed above, there are several e-mail communications to and fro the other OPs sent/ received by Ms. Shanta Sohoni with respect to the cartel arrangement.
70. Hence, in view of the above, the Commission finds Ms. Shanta Sohoni liable in terms of Section 48(2) of the Act, for the cartel conduct of OP-5.
(4) Mr. Vikas Agarwal, Director of Calstar Steel Ltd.
71. The DG has noted that Mr. Vikas Agarwal was one of the four Directors of OP-6. In his statement before the DG, Mr. Agarwal admitted that he was approached by other manufacturers and joined the group of other RDSO approved manufacturers for a limited period up to 20.03.2019 for providing supporting bid quotations. There are also certain e-mail communications on record which have been sent/ received by Mr. Vikas Agarwal to/ from the other OPs.
72. Hence, in view of the above, the Commission finds Mr. Vikas Agarwal liable in terms of both Section 48(1) and 48(2) of the Act, for the cartel conduct of OP-6.
(5) Mr. Vishal Baid, Director of Jai Polypan Pvt. Ltd.
73. The DG has noted that Mr. Vishal Baid was one of the three Directors of the private limited company OP-7. He admitted before the DG that since 2016, authorised persons of OP-7 have been communicating with other manufacturers. From the contents of the e-mail dated 11.09.2019 sent by Ms. Shanta Sohoni to representatives of some other OPs as extracted above, it is noted that in the meeting dated 10.09.2019 held between the OPs at Mumbai in which discussions pertaining to approved vendors and rates to be revised were made, Mr. Vishal Baid was present as the representative of OP-7.
74. Hence, in view of the above, the Commission finds Mr. Vishal Baid liable in terms of Section 48(1) and 48(2) of the Act, for the cartel conduct of OP-7.
(6) Mr. Rajeev Dhudani, Consultant/ Advisor at Jai Polypan Pvt. Ltd.
75. Mr. Vishal Baid, Director of OP-7, has submitted before the DG that Mr. Rajeev Dudhani, Consultant/ Advisor at OP-7, was working as a commission/ liaison agent for railways business and he was responsible for marketing and quality control for HPPA Bushes orders. Further, as detailed above, multiple e-mail communications to and fro the other OPs have been sent/ received by Mr. Rajeev Dudhani with respect to the cartel arrangement.
76. Hence, in view of the above, the Commission finds Mr. Rajeev Dudhani liable in terms of Section 48(2) of the Act, for the cartel conduct of OP-7.
(7) Mr. Rajesh R., Senior Manager, Operations at Jai Polypan Pvt. Ltd.
77. Mr. Vishal Baid, Director of OP-7, has submitted before the DG that Mr. Rajesh R., Senior Manager, Operations at OP-7, was the authorised person for filing bids on behalf of OP-7 in the tenders floated by the Indian Railways for HPPA Bushes. In his submission before the DG, Mr. Rajesh R. has acknowledged that he used to communicate with other manufacturers of HPPA/ SLPR Bushes to discuss and finalise bids to be submitted for tenders of Indian Railways. As detailed above, several e-mail communications to and fro the other OPs sent/ received by Mr. Rajesh R. show his clear involvement in the cartel arrangement.
78. Hence, in view of the above, the Commission finds Mr. Rajesh R. liable in terms of Section 48(2) of the Act, for the cartel conduct of OP-7.
(8) Mr. Vishnu N.M., Managing Partner of Polymer Products of India Ltd.
79. The DG has noted that Mr. Vishnu N.M., was one of the Managing Partners of partnership firm OP-8.
80. Hence, being in-charge of and responsible to OP-8 for the conduct of its business, which responsibility has not been denied by Mr. Vishnu in his suggestions/ objections to the DG Report, the Commission finds Mr. Vishnu N.M. liable in terms of Section 48(1) of the Act, for the cartel conduct of OP-8.
(9) Mr. Venkata Subramanyam, Managing Partner of Polymer Products of India Ltd.
81. The DG has noted that Mr. Venkata Subramanyam was also one of the Managing Partners of partnership firm OP-8.
82. Hence, being in-charge of and responsible to OP-8 for the conduct of its business, which responsibility has not been denied by Mr. Subramanyam in his suggestions/ objections to the DG Report, the Commission finds Mr. Venkata Subramanyam liable in terms of Section 48(1) of the Act, for the cartel conduct of OP-8.
(10) Mr. Harsha Gumballi, Manager (Admin) at Polymer Products of India Ltd.
83. The DG has noted that Mr. Harsha Gumballi was the Manager (Admin) at OP-8. As detailed above, there are several e-mail communications to and fro the other OPs sent/ received by Mr. Harsha Gumballi with respect to the cartel arrangement.
84. Hence, in view of the above, the Commission finds Mr. Harsha Gumballi liable in terms of Section 48(2) of the Act, for the cartel conduct of OP-8.
(11) Mr. Salimuddin, Managing Partner of M/s Micro Engineers
85. The DG has noted that Mr. Salimuddin was the Managing Partner of OP-9 and he was responsible for the day-to-day activities of the company. He was also aware of the receipt of e-mails from OP-4 with respect to the cartel arrangement.
86. Hence, in view of the above, the Commission finds Mr. Salimuddin liable in terms of Section 48(1) of the Act, for the cartel conduct of OP-9.
(12) Mr. Luv Kumar, Director of Quadrant EPP Surlon India Ltd. (Now MCAM Surlon India Ltd.)
87. The DG has noted that Mr. Luv Kumar was one of the three Directors of OP-10. He admitted before the DG that all approved vendors in the market for supply of HPPA Bushes were participating in a cartel. He also admitted to have been a part of the cartel.. He admitted that there were two physical meetings during 2014-2020 between the OPs, one of which he attended in 2016 at JW Marriott, Aero city, Delhi, which was called by Polyset Group for discussing market share of each vendor pursuant to inclusion of Black Burn Group in the cartel. Further, as detailed above, multiple e-mail communications are on record which have been sent/ received by Mr. Luv Kumar to and fro the other OPs.
88. Hence, in view of the above, the Commission finds Mr. Luv Kumar liable in terms of both Section 48(1) and 48(2) of the Act, for the cartel conduct of OP-10.
(13) Mr. R.K. Singh, Assistant Manager, Marketing at Quadrant EPP Surlon India Ltd. (Now MCAM Surlon India Ltd.)
89. Mr. Luv Kumar, Director of OP-10, in his submission before the DG, has stated that Mr. R. K. Singh, Assistant Manager, Marketing of OP-10, was responsible for filing of bids on behalf of the company. Mr. R.K Singh also has admitted that he was responsible for filing bids on behalf of company, however, he has contended that the final rates were submitted after discussion with the Directors. There are also multiple email communications on record which have been sent/ received by Mr. R.K. Singh, to and fro the other OPs.
90. Hence, in view of the above, the Commission finds Mr. R.K. Singh liable in terms of Section 48(2) of the Act, for the cartel conduct of OP-10.
(14) Mr. Shirish Tapuriah, ex-Director of Skylark Projects Pvt. Ltd.
91. The DG has noted that Mr. Shirish Tapuriah, ex-Director of OP-11, has been stated by Mr. Alok Somani of OP-1/ OP-3, to be a family friend who had started the business of OP-11 on Mr. Somani’s proposal.
92. Hence, being in-charge of and responsible to OP-11 for the conduct of its business, which responsibility has not been denied by Mr. Tapuriah in his suggestions/ objections to the DG Report, the Commission finds Mr. Shirish Tapuriah liable in terms of Section 48(1) of the Act, for the cartel conduct of OP-11.
Conclusion:
93. The Commission, hence, holds OP-1 to OP-11 guilty of contravention of the provisions of Section 3(3)(a), 3(3)(b), 3(3)(c) and 3(3)(d) read with 3(1) of the Act.
94. As far as individuals’ liability is concerned, the Commission holds the following individuals of the OPs liable under Section 48 of the Act, for the anti-competitive conduct of their respective companies:
(i) Mr. Alok Somani, Partner of Moulded Fibreglass Products and Director of Black Burn and Co. Pvt. Ltd.
(ii) Mr. Bhupesh Bafna, Director of Polyset Plastics Private Ltd. and Partner of Power Mould and M/s Anju Techno Industries
(iii) Ms. Shanta Sohoni, Employee at Polyset Plastics Private Ltd.
(iv) Mr. Vikas Agarwal, Director of Calstar Steel Ltd.
(v) Mr. Vishal Baid, Director of Jai Polypan Pvt. Ltd.
(vi) Mr. Rajeev Dudhani, Consultant/ Advisor at Jai Polypan Pvt. Ltd.
(vii) Mr. Rajesh R., Senior Manager, Operations at Jai Polypan Pvt. Ltd.
(viii) Mr. Vishnu N.M., Managing Partner of Polymer Products of India Ltd.
(ix) Mr. Venkata Subramanyam, Managing Partner of Polymer Products of India Ltd.
(x) Mr. Harsha Gumballi, Manager (Admin) at Polymer Products of India Ltd.
(xi) Mr. Salimuddin, Managing Partner of M/s Micro Engineers;
(xii) Mr. Luv Kumar, Director of Quadrant EPP Surlon India Ltd. (Now MCAM Surlon India Ltd.)
(xiii) Mr. R.K. Singh, Assistant Manager, Marketing at Quadrant EPP Surlon India Ltd. (Now MCAM Surlon India Ltd.)
(xiv) Mr. Shirish Tapuriah, ex-Director of Skylark Projects Pvt. Ltd.
Penalty and lesser penalty:
95. Once contravention of the provisions of the Act has been established, the Commission now proceeds to determine the penalty, if any, to be imposed upon the contravening parties, under the provisions of Section 27(b) of the Act.
96. Under Section 27(b) of the Act, where after inquiry, the Commission finds that any agreement referred to in Section 3, or action of an enterprise in a dominant position is in contravention of Section 3 or Section 4 of the Act, as the case may be, it may impose upon each of such persons or enterprises which are parties to such agreements or abuse, such penalty, as it may deem fit, which shall be not more than ten percent of the average of the turnover for the last three preceding financial years.
97. Accordingly, in terms of the said provision, the Commission decides to compute the penalty to be imposed upon the OPs. Considering the nature of the cartel arrangement, the mitigating factors submitted by the OPs, and the fact that several of the OPs are MSMEs, the Commission decides to impose upon the OPs, penalty @5% of the average of their turnover generated from the sale of HPPA Bushes/ SLPR Bushes, for the last three preceding financial years.
98. The same is calculated as under:
| Moulded Fibreglass Products (OP-1) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 3,56,70,145 |
| 2018–19 | 3,93,63,598 |
| 2019-20 | 2,27,39,892 |
| Total | 9,77,73,635 |
| Average | 3,25,91,212 |
| Penalty | 16,29,561 |
–
| Power Mould (OP-2) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 3,74,39,979 |
| 2018–19 | 1,86,63,933 |
| 2019-20 | 1,08,360 |
| Total | 5,62,12,272 |
| Average | 1,87,37,424 |
| Penalty | 9,36,871 |
–
| Black Burn and Co. Pvt. Ltd. (OP-3) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 4,57,70,758 |
| 2018–19 | 4,32,09,639 |
| 2019-20 | 3,30,62,990 |
| Total | 12,20,43,387 |
| Average | 4,06,81,129 |
| Penalty | 20,34,056 |
–
| Polyset Plastics Private Ltd. (OP-4) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 8,97,149 |
| 2018–19 | 2,85,120 |
| 2019-20 | 1,84,211 |
| Total | 13,66,480 |
| Average | 4,55,493 |
| Penalty | 22,775 |
–
| Anju Techno Industries (OP-5) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 76,55,704 |
| 2018–19 | 3,81,19,042 |
| 2019-20 | 4,40,22,635 |
| Total | 8,97,97,381 |
| Average | 2,99,32,460 |
| Penalty | 14,96,623 |
–
| Calstar Steel Ltd. (OP-6) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 2,03,16,375 |
| 2018–19 | 1,57,29,968 |
| 2019-20 | 3,32,70,402 |
| Total | 6,93,16,745 |
| Average | 2,31,05,582 |
| Penalty | 11,55,279 |
–
| Jai Polypan Pvt. Ltd. (OP-7) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 4,58,37,391 |
| 2018–19 | 1,46,75,515 |
| 2019-20 | 92,16,108 |
| Total | 6,97,29,014 |
| Average | 2,32,43,005 |
| Penalty | 11,62,150 |
–
| Polymer Products of India Ltd. (OP-8) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 6,93,357 |
| 2018–19 | 40,75,909 |
| 2019-20 | 1,80,98,151 |
| Total | 2,28,67,417 |
| Average | 76,22,472 |
| Penalty | 3,81,124 |
–
| M/s Micro Engineers (OP-9) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | – |
| 2018–19 | – |
| 2019-20 | – |
| Total | – |
| Average | – |
| Penalty | – |
–
| Quadrant EPP Surlon India Ltd. (Now MCAM Surlon India Ltd.) (OP-10) (In ₹) |
|
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | 1,27,83,494 |
| 2018–19 | 2,42,62,622 |
| 2019-20 | 1,65,80,138 |
| Total | 5,36,26,254 |
| Average | 1,78,75,418 |
| Penalty | 8,93,771 |
–
| Skylark Projects Pvt. Ltd. (OP-11) (In ₹) | |
| FINANCIAL YEAR | RELEVANT TURNOVER |
| 2017–18 | – |
| 2018–19 | 4,35,710 |
| 2019-20 | – |
| Total | 4,35,710 |
| Average | 1,45,237 |
| Penalty | 7,262 |
99. Similarly, with regard to the individuals of the OPs found liable in terms of Section 48 of the Act for the anti-competitive conduct of their respective companies/firms, the Commission decides to impose penalty @5% of the average of their incomes, for the last three preceding financial years. The same is calculated as under:
100. Regarding lesser penalty, the Commission notes that though OP-3 was the first lesser penalty applicant to approach the Commission, yet it had approached the Commission as a lesser penalty applicant only after investigation in the matter had been ordered. Having said that, it is noted that full and true disclosures of information and evidence and continuous co-operation provided by OP-3 and its individual enabled in establishing contravention of the provisions of Section 3(3) of the Act by the OPs, as brought out supra. As such, on a holistic consideration of the matter, the Commission decides to grant to OP-3 and Mr. Alok Somani, 80% reduction in the penalty amount imposed upon them.
101. The second lesser penalty applicant before the Commission was OP-1. The Commission notes that in terms of the disclosures and evidence provided, OP-1 was not able to provide much value addition to the information, material and documents already provided by OP-3 through its lesser penalty application. Nonetheless, full and true disclosures of information and evidence and continuous co-operation provided by OP-1 helped the Commission in establishing contravention of the provisions of Section 3(3) of the Act by the OPs. As such, the Commission decides to grant to OP-1, 40% reduction in the penalty amount imposed upon it.
102. The third lesser penalty applicant before the Commission was OP-7. OP-7 has requested lesser penalty for itself and its individuals viz. Mr. Vishal Baid, Mr. Rajeev Dudhani and Mr. Rajesh R. The Commission notes that OP-7 was the third lesser penalty applicant and by the time of its application, the DG already had in its possession, from the lesser penalty applications filed by OP-3 and OP-1, quite a lot of evidence required for establishing a cartel. However, some evidence submitted by OP-7 has been used by the Commission to form a complete trail evidencing anti-competitive conduct of the OPs; therefore, providing value addition to the investigation of the DG. Further, OP-7 has also disclosed to the Commission about existence of another cartel arrangement. Given the stage at which OP-7 came forward with the disclosures, the quality of information provided by OP-7, the evidence already in possession of the DG at that time, and the entire facts and circumstances of the present case, and the factum of disclosure of another cartel by OP-7, the Commission decides to grant to OP-7 and its three individuals, reduction in penalty to the tune of 30% of the total penalty leviable.
103. The last lesser penalty applicant before the Commission was OP-10. OP-10 has requested lesser penalty for itself and its individuals viz. Mr. R.K. Singh and Mr. Luv Kumar. With regard to OP-10 also, it is noted that by the time application from OP-10 was received, the DG already had in its possession, from the lesser penalty applications filed by OP-3, OP-1 and OP-7, most of the evidence on the basis of which cartelisation in the present matter has been established. However, some evidence submitted by OP-10 has been used by the Commission above to form a complete trail evidencing anticompetitive conduct of the OPs, as such providing value addition to the investigation of the DG. Therefore, given the stage at which OP-10 came forward with the disclosures, the quality of information provided by OP-10, the evidence already in possession of the DG at that time, and the entire facts and circumstances of the present case, the Commission decides to grant to OP-10 and its two individuals, reduction in penalty to the tune of 20% of the total penalty leviable.
104. Consequently, the penalty amounts imposed upon and payable by the OPs are as follows:
| S. No. | OP | Name of Party | Penalty Imposed |
Penalty payable after reduction |
| 1. | OP-1 | Moulded Fibreglass Products | 16,29,561 | 9,77,737 |
| 2. | OP-2 | Power Mould | 9,36,871 | 9,36,871 |
| 3. | OP-3 | Black Burn and Co. Pvt. Ltd. | 20,34,056 | 4,06,811 |
| 4. | OP-4 | Polyset Plastics Private Ltd. | 22,775 | 22,775 |
| 5. | OP-5 | M/s Anju Techno Industries | 14,96,623 | 14,96,623 |
| 6. | OP-6 | Calstar Steel Ltd. | 11,55,279 | 11,55,279 |
| 7. | OP-7 | Jai Polypan Pvt. Ltd. | 11,62,150 | 8,13,505 |
| 8. | OP-8 | Polymer Products of India Ltd. | 3,81,124 | 3,81,124 |
| 9. | OP-9 | M/s Micro Engineers | Nil | Nil |
| 10. | OP-10 | Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) | 8,93,771 | 7,15,017 |
| 11. | OP-11 | Skylark Projects Pvt. Ltd. | 7,262 | 7,262 |
105. As far as the individuals of the OPs are concerned, the penalty amounts calculated for them and payable by them are as follows:
(In ₹)
| S. No. | Name of Party | Penalty Imposed |
Penalty payable after reduction |
| 1. | Mr. Alok Somani of Black Burn and Co. Pvt. Ltd. and Moulded Fibreglass Products | 4,03,456 | 80,691 |
| 2. | Mr. Bhupesh Bafna of Power Mould, Polyset
Plastics Private Ltd. and M/s Anju Techno |
10,27,033 | 10,27,033 |
| 3. | Ms. Shanta Sohoni of Polyset Plastics Private Ltd. | 25,019 | 25,019 |
| 4. | Mr. Vikas Agarwal of Calstar Steel Ltd. | 2,16,048 | 2,16,048 |
| 5. | Mr. Vishal Baid of Jai Polypan Pvt. Ltd. | 4,80,081 | 3,36,057 |
| 6. | Mr. Rajeev Dhudani of Jai Polypan Pvt. Ltd. | 1,04,974 | 73,482 |
| 7. | Mr. Rajesh R. of Jai Polypan Pvt. Ltd. | 24,659 | 17,261 |
| 8. | Mr. Vishnu N.M. of Polymer Products of India Ltd. | 12,86,919 | 12,86,919 |
| 9. | Mr. Venkata Subramanyam of Polymer Products of India Ltd. | 11,92,932 | 11,92,932 |
| 10. | Mr. Harsha Gumballi of Polymer Products of India Ltd. | 20,006 | 20,006 |
| 11. | Mr. Salimuddin of M/s Micro Engineers | 59,046 | 59,046 |
| 12. | Mr. Luv Kumar of Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) | 3,24,381 | 2,59,505 |
| 13. | Mr. R.K. Singh of Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) | 33,431 | 26,745 |
| 14. | Mr. Shirish Tapuriah of Skylark Projects Pvt. Ltd. | 48,959 | 48,959 |
106. In view of the above, the Commission passes the following:
ORDER
107. OP-1 to OP-11 are found guilty of contravention of the provisions of Section 3(3)3(a), 3(3)(b), 3(3)(c) and Section 3(3)(d) read with Section 3(1) of the Act. Further, 14 individuals of the OPs are found liable in terms of Section 48 of the Act, for the anticompetitive conduct of their respective entities.
108. The Commission, in terms of Section 27(a) of the Act, directs the parties to cease and desist in future from indulging in any practice/conduct/activity, which has been found in the present order to be in contravention of the provisions of Section 3 of the Act, as detailed in the earlier part of this order.
109. Further, under the provisions of Section 27(b) of the Act, the Commission directs the following parties to pay the following amounts of penalty:
| S. No. | Name of Party | Amount of Penalty (In ₹) |
Amount in Words |
| 1. | Moulded Fibreglass Products | 9,77,737 | Rupees Nine Lacs Seventy Seven Thousand Seven Hundred and Thirty Seven Only |
| 2. | Power Mould | 9,36,871 | Rupees Nine Lacs Thirty Six Thousand Eight Hundred and Seventy One Only |
| 3. | Black Burn and Co. Pvt. Ltd. | 4,06,811 | Rupees Four Lacs Six Thousand Eight Hundred and Eleven Only |
| 4. | Polyset Plastics Private Ltd. | 22,775 | Rupees Twenty Two Thousand Seven Hundred and Seventy Five Only |
| 5. | M/s Anju Techno Industries | 14,96,623 | Rupees Fourteen Lacs Ninety Six Thousand Six Hundred and Twenty Three Only |
| 6. | Calstar Steel Ltd. | 11,55,279 | Rupees Eleven Lacs Fifty Five Thousand Two Hundred and Seventy Nine Only |
| 7. | Jai Polypan Pvt. Ltd. | 8,13,505 | Rupees Eight Lacs Thirteen Thousand Five Hundred and Five Only |
| 8. | Polymer Products of India Ltd. | 3,81,124 | Rupees Three Lacs Eighty One Thousand One Hundred and Twenty Four Only |
| 9. | M/s Micro Engineers | Nil | Nil |
| 13. | Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) | 7,15,017 | Rupees Seven Lacs Fifteen Thousand and Seventeen Only |
| 14. | Skylark Projects Pvt. Ltd. | 7,262 | Rupees Seven Thousand Two Hundred and Sixty Two Only |
| 15. | Mr. Alok Somani of Black Burn and Co. Pvt. Ltd. and Moulded Fibreglass Products | 80,691 | Rupees Eighty Thousand Six Hundred and Ninety One Only |
| 16. | Mr. Bhupesh Bafna of Power Mould, Polyset Plastics Private Ltd. and M/s Anju Techno Industries | 10,27,033 | Rupees Ten Lacs Twenty Seven Thousand and Thirty Three Only |
| 17. | Ms. Shanta Sohoni of Polyset Plastics Private Ltd. | 25,019 | Rupees Twenty Five Thousand and Nineteen Only |
| 18. | Mr. Vikas Agarwal of Calstar Steel Ltd. | 2,16,048 | Rupees Two Lacs Sixteen Thousand and Forty Eight Only |
| 19. | Mr. Vishal Baid of Jai Polypan Pvt. Ltd. | 3,36,057 | Rupees Three Lacs Thirty Six Thousand and Fifty Seven Only |
| 20. | Mr. Rajeev Dhudani of Jai Polypan Pvt. Ltd. | 73,482 | Rupees Seventy Three Thousand Four Hundred and Eighty Two Only |
| 21. | Mr. Rajesh R. of Jai Polypan Pvt. Ltd. | 17,261 | Rupees Seventeen Thousand Two Hundred and Sixty One Only |
| 22. | Mr. Vishnu N.M. of Polymer Products of India Ltd. | 12,86,919 | Rupees Twelve Lacs Eighty Six Thousand Nine Hundred and Nineteen Only |
| 23. | Mr. Venkata Subramanyam of Polymer Products of India Ltd. | 11,92,932 | Rupees Eleven Lacs Ninety Two Thousand Nine Hundred and Thirty Two Only |
| 24. | Mr. Harsha Gumballi of Polymer Products of India Ltd. | 20,006 | Rupees Twenty Thousand and Six Only |
| 22. | Mr. Salimuddin of M/s Micro Engineers | 59,046 | Rupees Fifty Nine Thousand and Forty Six Only |
| 23. | Mr. Luv Kumar of Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) | 2,59,505 | Rupees Two Lacs Fifty Nine Thousand Five Hundred and Five Only |
| 24. | Mr. R.K. Singh of Quadrant EPP Surlon India Ltd. (now MCAM Surlon India Ltd.) | 26,745 | Rupees Twenty Six Thousand Seven Hundred and Forty Five Only |
| 25. | Mr. Shirish Tapuriah of Skylark Projects Pvt. Ltd. | 48,959 | Rupees Forty Eight Thousand Nine Hundred and Fifty Nine Only |
110. The parties mentioned in the table above are directed to deposit their respective penalty amounts within 60 days of the receipt of the present order.
111. It is made clear that all information used in the present order is for the purposes of the Act and as such, in terms of Section 57 of the Act, does not qualify for grant of confidential treatment.
112. The Secretary is directed to forward certified copy of the present order to the parties through their respective legal counsel, accordingly.
