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2016 (4) TMI 1329 - AT - Indian LawsAnti-competitive Activities - Whether the appellants could be accused of bid-rigging/collusive bidding and held guilty of acting in contravention of Section 3(1) read with Sections 3(3)(a) and 3(3)(d) of the Competition Act, 2002 merely because they quoted substantially similar price for the product, namely, Polyester Blended Duck Ankle Boot Rubber Sole (hereinafter described as 'the Jungle Boots'),which is required to be manufactured as per the specifications prescribed by the Director General (Supply and Demand) (DGS&D) and is mostly purchased by the Government Agencies like Paramilitary Forces, State Police, Railways etc. on the basis of the Rate Contracts executed on annual basis? - Held that:- Unfortunately, neither the DG nor the Commission gave due weightage to the aforesaid factors and heavily banked on the factors like identical or near identical price quoted by the appellants in response to Tender Enquiry dated 14.06.2011 and the so-called plus-factor for recording a finding that the appellants had contravened Section 3(1) read with Sections 3(3)(a) and 3(3)(d) of the Act - the findings and conclusions recorded by the DG and the Commission that the appellants had indulged in collusive bidding/bid-rigging and thereby violated Section 3(1) read with Section 3(3)(a) and 3(3)(d) of the Act are legally unsustainable and the impugned order is liable to be set aside. Whether in exercise of powers vested in it under Section 27(b) of the Act, the Commission could impose penalty on the total turnover of the appellants for the three preceding financial years? - Held that:- The Commission committed grave illegality by imposing penalty @5% of the average turnover of the appellants in respect of all the products manufactured by them for the last three preceding financial years. The respondents have not disputed that all the appellants are multi-product companies and the Jungle Boots is only one of the products manufactured by them - the Commission is not entitled to impose penalty on the defaulting enterprise/person by taking into consideration its total turnover for the preceding three financial years. The impugned order is set aside and the penalty imposed by the Commission on the appellants is quashed - appeal allowed.
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