TaxTMI 
TaxTMI 
2013 (11) TMI 993
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....1) of Section 4. Such an enquiry can be initiated by the Commission either on its own or on receiving any information from any person or a reference made to it by the Central Government or the State Government or a statutory authority. 2. The respondent No. 3-East India Petroleum Private Limited was engaged in providing terminalling service at Vishakhapatnam Port which enabled it to handle imports and exports of bulk liquid products as well as liquefied gas fuels. The LPG/liquefied gases were unloaded from ships by an entity owned by HPCL and pumped by HPCL through a pipeline, part of which was owned by HPCL and part by respondent No. 3. On commissioning of underground cavern by the petitioner, the unloading services offered by HPCL were handed over to it in the year 2008 and gradually the unloading arm of HPCL was discontinued, whereafter all the products were unloaded only through the petitioner-company, which had also installed blender facility for blending liquefied Butane and Propane. The respondent No.3 submitted an information petition to the Commission, alleging that the petitioner-company had created a dominant position in terminalling services and abused its dominance by....
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....s charges of Rs 200/- per MT and recommended by OMCs for approval of Ministry of Petroleum and Natural Gas. Further, the OMCs had been paying only 85% of the charges to OP since the rates were provisional. Therefore, OP was not found to be in contravention of sections 4(2)(a)(i) and 4(2)(a)(ii) of the Act. 8. On the allegation of informant regarding denial of access to informant for bypass of propane and butane blend, DG was of the opinion that OP furnished valid efficiency, technical and business justifications. Further, it was observed that the OP did not refuse access to any party including informant, but objected to piecemeal utilization of its infrastructure and raised legitimate concern of underutilization of carven facility. Therefore, OP was not found to be in contravention of any provisions of the Act." 3. The investigation report was sent by the Commission to respondent No.3 which submitted an application under Regulation 4(5) of Competition Commission of India (General) Regulations, 2009 seeking to cross-examine the witnesses whose evidence was recorded by Director General. On being required by the Commission, the respondent No. 2 submitted int....
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....ned senior counsel for the petitioner that he was not challenging either the jurisdiction of the Commission to direct further investigation or allow cross-examination of witnesses by the opposite party, but, no such order could have been passed, without giving opportunity of hearing to the petitioner. 5. Section 26(1) of the Act, to the extent it is relevant, provides that on receipt, a reference or information under Section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter. Sub-section (2) of the said Section provides that the Director General shall, on receipt of direction for investigation, submit a report to the Commission on his finding. Sub-section (4), (5) and (7) of Section 26 reads as under:- "4. The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be. 5. If the report of the Director General relates on a complaint and such report recommends that there is no....
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....Authority" and "the parties". Had the Legislature intended inviting objections or suggestions even from the person against whom the complaint is made, the word "and" and not the word "or" would have been used between the expression "Statutory Authority" or "the parties". It can hardly be disputed that in case investigation is ordered on receipt of a reference from the Central Government or the State Government or a Statutory Authority and the Director General recommends that there is no contravention of provisions of the Act, the Commission will have to invite objections or suggestions from the Central Government or the State Government or the Statutory Authority, as the case may be, before it takes a view on such report. Had the intention of the Legislature been that, in such a case, besides hearing the Central Government, State Government or the Statutory Authority, as the case may be, the Commission should also hear the person against whom the reference is made, it would not have used the word "or" and would have used the word "and" between the expressions "Statutory Authority" and "the parties". Therefore, on a fair reading of sub-section (5) of Section 26, I cannot accept the ....
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....ust and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. 57....Now, it is true that there is no express provision in the Passports Act, 1967 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But even when the statute is silent the law may in a given cases make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Board of Works (1863) 14 C.B. N.S. 180. "A long course of decisions, beginning with Dr. Bentley"s case (1723) 1 Str 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature". The principle of audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice. In fact, there are two main principles in which the rules of natural justice....