TMI Blog2018 (1) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... harlal Nehru Port with its own ships to force ships to dock at Papavav suffers from a basic fallacy. The Appellant has relied on chart to show movement of ships. From the chart it is pointed out that ships visiting GTIPL also visit Pipavav Terminal and vice versa. If this is so, there is no substance in the argument that OP-1 was blocking the Terminals at Jawaharlal Nehru Port so as to divert the ships to Papavav. If the ship was visiting GTIPL and then visiting Pipava Terminals also, by that itself it cannot be stated that prima facie case is made out that the Appellant forced diversion of the ships to Pipavav. The entries made in the chart relied on, cannot be said to be making out a prima facie case. There has to be some evidence worth the name to show that it was the OP-1 who forced diversion of the ships to Pipavav or forced the ships to visit both Pipavav as well as GTIPL. There could be various reasons including need of delivery or pick up of cargo at both Terminals and merely pointing out the chart is not enough to start an investigation under the Act. - Competition Appeal (AT) No. 04 of 2017 - - - Dated:- 5-12-2017 - Mr. S.J. Mukhopadhaya, Mr. A.I.S. Cheema And Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ava Sheva (India) Gateway Terminal Pvt. Ltd. ( NSIGTPL ) (awarded to DP World) (iv) BMCT (being developed by Bharat Mumbai Container Terminals Ltd, subsidiary of PSA Bharat Investment Private Limited expected to commence operations by end of 2017. 5. As per information submitted by the Appellant to CCI OP-1 is a Private Limited Company having registered office at JNPT Nhava Sheva Taluka Uran, Navi Mumbai. OP-2 is Public Limited Company in the Register at Pipavav Port. While the business of OP-1 is of providing Container Terminal Services, the business of OP-2 is Supporting Service for Water Transport . It is claimed that OP-1 OP-2 are group Companies under the aegis of APM Terminals i.e., A.P. Moeller-Maersk A/S is a conglomerate with diversified holdings situated at Denmark. Informant made a claim that J.N. Port is presently functioning through three terminals out of which 2- (i) Nhava Sheva International Container Terminal Private Limited NSICT ) AND Gateway Terminal Private Limited ( GTIPL ) run on public private partnership and run by DP World and Gateway Terminals India ( GTI ) respectively, whereas the third terminal- Jawaharlal Nehru Port Container Terminal ( JNPCT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apacity. It is then tried to be shown that ships arriving at JNPCT and NSICT were not generally travelling to Pipavav. At the same time, it is submitted that chart shows ships calling on JNPCT and NSICT, the ships calling on GTIPL were generally travelling to Pipavav or calling on GTIPL after first calling at Pipavav. On such basis, the Appellant claimed that there was forced diversification of traffic to Pipavav using dominating position by OP-1 to earn more profits. 7. The Appellant has criticised the impugned order by submitting that although CCI accepted the submission of Appellant that the relevant market is of provision of Container Terminal Services in Jawaharlal Port, Mumbai still CCI wrongly rejected the claim of Appellant that OP-1 and OP-2 were abusing dominant position of OP-1 at Jawaharlal Nehru Port. It is argued that the reasonings recorded by the CCI could not be maintained. 8. In defence, OP-1 2 have submitted that the orders passed by learned CCI are well founded. It is claimed that the Appellant failed to make out a prima facie case for directing investigation. No evidence has been provided by the Appellant that OP-1 2 have been compelling the ships to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gth of BMCTPL is 2000 Meters which is larger than quay length of 712 Meters of OP-1 implying that BMCMPL is of higher capacity than OP-1 for loading and unloading cargo at Jawaharlal Nehru Port. The Appellant has criticized this observation of the Ld. CCI referring to 2000 Metres claiming that the CCI fabricated facts out of nowhere just to give artificial crutches to its observation regarding dominant position. Reference is made to page-259 of the Appeal where it is mentioned that the quay length of 4th Terminal likely to come into existence by the end of 2017 will be 1000 Meters and that quay length was expected to enhance to 2000 M by the year 2022. 11. Page 259 in the Paper Book appears to be a write up with the reference to Hon ble Prime Minister laying foundation stone of JNPT S fourth Container Terminal in which the Shipping Secretary is stated to have apprised the Hon ble Prime Minister that in JNPT s Fourth Container Terminal the first phase consisting of 1000 Meters quay would be completed by December, 2017. On completion of both phases, the total length of berth would be 2000 Meters. It is rude on the part of the Appellant to state that the Ld. CCI fabricated fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter services, merely pointing out market share, it is attracting is not enough. We find that the impugned order is well reasoned and the submission made by the learned Counsel for Appellant questioning this order do not find force. 15. The case of the Appellant that the OP-1 blocks the Terminals at Jawaharlal Nehru Port with its own ships to force ships to dock at Papavav suffers from a basic fallacy. The Appellant has relied on chart at pages 136 to 140 of the Paper Book to show movement of ships. From the chart it is pointed out that ships visiting GTIPL also visit Pipavav Terminal and vice versa. If this is so, there is no substance in the argument that OP-1 was blocking the Terminals at Jawaharlal Nehru Port so as to divert the ships to Papavav. If the ship was visiting GTIPL and then visiting Pipava Terminals also, by that itself it cannot be stated that prima facie case is made out that the Appellant forced diversion of the ships to Pipavav. The entries made in the chart relied on, cannot be said to be making out a prima facie case. There has to be some evidence worth the name to show that it was the OP-1 who forced diversion of the ships to Pipavav or forced the ships to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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