595
July 13 To July 19, 2019 u Taxmann’s Corporate Professionals Today u Vol. 45 u 69market access but also had caused financial
hardship to him.
In beginning of their relationship, pharmaceutical
company started supplying medicine to
informant only after BCDA issued an NOC
to informant after receiving Rs. 50 thousand
under guise of a donation, which amounted
to imposing unfair practice on informant.
According to informant alleged behaviour
of BCDA and Co. amounted to violation of
provisions of sections 3 and 4 of the Act
and from material available on record it
appeared that Co. did not stop supplying
medicines to informant, rather it insisted on
advance payment in view of earlier incidents
of delayed payments. Further, stockistship of
informant was still subsisting with Co., and
Co. undertook to supply medicines on order
placed by informant on receipt of advance
payment.
It was also noted that informant had been
doing business for years without any complaint
regarding any cash donation/NOC and there
was no cogent evidence to prove that BCDA
had indulged in issuing NOC or that it had
influenced commercial decision of Co. in
dealing with informant.
Informant also failed to submit alleged request
of BCDA for NOC from another pharma -
company pertaining to 2017 either at time
of filing of information or later on. Thus, it
appeared to be an afterthought on part of
informant by which he tried to give impression
of a commercial dispute between him and
pharma-Co. or a colour of competition issue.
Thus, no case of contravention of provisions
of Act was made out against company and
BCDA.
Withdrawalofdiscoun tbyce ment
manufacturewasn’tananti -competi-
tiveAct,NCLA TupheldCC I’sorde rK.M. Chakrapani v. Competition Commission of
India [2019] 106 taxmann.com 155 (NCL -AT)
In the instant case, the Appellants who
were dealers in cement filed information
alleging that the Kerala Cement Dealers
Association’ (‘KCDA’) was interrupting or
blocking supply of cement to informant by
Ramco, cement manufacturer, as the appellant
ignored instruction of KCDA to sell cement
at an unjust price and KCDA also terminated
their dealership. The Director General (DG)
found that the KCDA had no role in regard
to supply of cement by cement manufacturers
to dealers, which purely depended on market
considerations. The Commission by impugned
order closed matter holding that there was no
evidence to persuasively establish indulgence
into any anti-competitive conduct covered
under provisions of Act.
On Appeal, it was held that, since there was
no meeting of minds between KCDA and
cement manufacturers in regard to grant or
termination of dealership, the Commission
was justified in arriving at conclusion that
no case of contravention of section 3 of the
Competition Act, 2002 was made out.
The Appellate Tribunal further ruled that
no infirmity was found in order of the
Commission as there were number of cement
brands and thousands of dealers across Kerala,
and therefore, withdrawal of discounts by a
cement manufacturer would not be a proof
of an anti-competitive agreement. Operationalcr editorisleg allyen ti-
tledtosetoffamoun tre coverable
fromdebtoratCIRPst ageBharti Airtel Ltd. v. Vijaykumar V. Iyer
[2019] 106 taxmann.com 103 (NCLT - Mum.)
In given case, the Corporate - debtor entered
into Spectrum Trading Agreements ‘STAs’
with operational creditor ‘Airtel’ to transfer
right to use spectrum in favour of operational
creditor. Since the corporate - debtor did not
have financial capability, operational creditor
furnished bank guarantees of `453.75 crores
to Department of Telecommunication (DoT)WEEKLY REVIEW