The ‘Builders Association of India’ filed information under Section 19(1) (a) of the Competition Act, 2002, alleging anti-competitive agreement against the ‘Cement Manufactures’ Association’ (hereinafter referred to as “CMA”- the ‘Opposite Party No.1′) and 11 Cement Manufacturing Companies- (Appellants’ herein). After receiving the aforesaid information, the Competition Commission of India (hereinafter referred to as “Commission”) formed prima facie opinion and assigned the matter to the Director General (hereinafter referred to as “DG”) for detailed investigation as per procedure prescribed in the Competition Act, 2002. The DG after detailed investigation, reported the matter against the `CMA’ and other Cement Manufacturing Companies.
2. The Commission, on hearing, initially passed an order on 20th June, 2012, held that the Opposite Parties are in contravention of Section 3(3)(a) 85 (b) of the Competition Act, 2002 imposed penalty and directed the Opposite Parties to cease and desist from indulging in such activity. The CMA was ordered to disengage and disassociate from its wrong prices.
3. The aforesaid order of the Commission was appealed before the `Competition Appellate Tribunal’ (hereinafter referred to as “COMPAT”), which by its judgment dated 11th December, 2015, set aside the said order and remanded the matter to the Commission with following observations:
“99. The Commission shall hear the advocates/ representatives of the appellants and BAT and pass fresh order in accordance with law. We hope and trust that the Commission shall pass fresh order as early as possible but within a period of three months from the date, which may be notified after receipt of this order.
100. The parties shall be free to advance all legally permissible arguments. They may rely upon the documents, which formed part of the record of the Jt. DG or which may have been filed by them before the commencement of hearing on 21.02.2012. The parties shall also be free to press the applications already filed before the Commission. However, no application, which may be filed hereinafter for cross-examination of the persons, whose statements were recorded by the Jt. DG or for any other purpose shall be entertained by the Commission.”
4. After remand, the Commission again heard the parties and by impugned order dated 31st August, 2016 held that the Opposite Parties (Appellants’ herein) by acting in concert fixed cement prices, limited and controlled the production and supply in the market and thereby they have contravened the provisions of Section 3(1) read with Section 3(3)(a) and 3(3)(b) of Competition Act, 2002.
5. The Commission while holding so directed the Opposite Parties (Appellants) to cease and desist from indulging in any activity relating to agreement, understanding or arrangement on prices, production and supply of cement in the market and also imposed penalty. The CMA has been directed to disengage and disassociate itself from collecting wholesale and retail prices through the member cement companies or otherwise and also imposed penalty under the provisions contained in Section 27(b) of the Competition Act, 2002.
6. NCALT has discussed the issue in details in its 97 Page order and held that So far as the quantum of penalty order is concerned, as we find that the Commission has imposed mere minimum penalty, no interference is called for against the same.