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TMI Blog2023 (7) TMI 1537X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Virmani, Mr. Raj Surana, Ms. Disha Gupta, Advocates for CCI. Ms. Shama Nargis, DD (CCI), Ms. Srishti Vashisht for CCI. Ms. Smriti Churiwal, Advocate for RP Mr. Vikram Nankani, Sr. Advocate with Mr. Vikram Wadehra, Advocate for R-3/RP. Mr. Mukul Rohatgi, Mr. Arun Kathpalia and Mr. Krishnendu Datta, Sr. Advocates, Mr. Vaibhav Gaggar, Mr. Sanjeev Sharma, Mr. Akshay Nanda, Ms. Neha Mishra, Ms. Sanya Sud, Ms. Vaishali Goyal, Ms. Praniti Ganjoo, Mr. Aditye Arora, Ms. Threcy Lawrence, Ms. Vaishnavi Bansal, Mr. Ketan Saraf, Ms. Kokila Kumar, Mr. Rajat Sinha, Ms. Diksha Gupta, Ms. Neha Agarwal, Advocates. Mr. Yadhunath Bhargavan, Mr. Akshay Chandra, Mr. Rahul Choudhary, Mr. Ravjyot Singh, Mr. Utkarsh Bhanu, Advocates in I.A. No. 2443/2023 JUDGMENT ASHOK BHUSHAN, J. These four Appeal(s) have been filed against the same order dated 15.03.2023 passed by the Competition Commission of India (hereinafter referred to as the "CCI") under Section 31, sub-section (1) of the Competition Act, 2022 (hereinafter referred to as the "Act") approving the combination in response to the notice given by Respondent No.2, under Section 6, sub-section (2) of the Act. All the Appeal(s) having been file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bination should not be conducted. (v) A letter dated 23.02.2023 was sent by the Commission to the Appellant (UPGMS) in reference to the objection and representations filed by the Appellant in Combination Registration No.C-2022/11/983. The copy of the order dated 22.02.2023 passed by the CCI was sent to the Appellant. The Commission communicated that the concern expressed relating to the assessment of the proposed combination has been noted by the Commission. It was communicated that no personal hearing can be granted. The Appellant filed an application before the CCI on 16.02.2023 for inspection of the case records. The request submitted by the Appellant - The U.P. Glass Manufacturers Syndicate (for short "UPGMS") was not acceded and a letter dated 07.03.2023 was sent to the UPGMS by the CCI. (vi) The Acquirer submitted a response to show-cause notice vide its letter dated 10.03.2023. Along with reply to show-cause notice, the AGI submitted certain voluntary modifications. Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 7 Certain additional clarification regarding voluntary modifications were also submitted by the AGI on 14.03.2023. (vii) The Commission in its Meeting dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of UPGMS shall be adversely affected. The Appellant has also given certain details with regard to proceedings against HNG in the insolvency proceedings, which are not necessary to be noticed for deciding the Appeal. Competition Appeal (AT) No. 08 of 2023 5. This Appeal has been filed by Independent Sugar Corporation Limited ("INSCO") claiming to be a company incorporated under the laws of Bermuda. The company INSCO is held by two groups of companies - RAMCO Holding Limited having 50% shareholding and Emil International Holdings Limited having the other 50% shareholding. The INSCO has also submitted its Resolution Plan in the insolvency proceedings of HNG. The Appellant had also given notice to the CCI under Section 6, sub-section (2) of the Act. The Appellant received the requisite approval from CCI vide Notice C-2022/09/974 dated 30.09.2022 under the Green Channel Route. The Appellant was therefore in receipt of the necessary certificate approval, prior to the approval of the Resolution Plan being voted by the CoC. The INSCO aggrieved by the order dated 15.03.2023 has filed this Appeal. Competition Appeal (AT) No. 09 of 2023 6. This Appeal has been filed M/s. Geeta a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Members of the trade unions and as such Appellant being the most affected stakeholder be given an opportunity of being heard. The Appellant question's the order on several grounds. It is pleaded that CCI has failed to follow the process of law and principles of natural justice in passing the impugned order. 8. We have heard Shri Ratnako Banerji, learned Senior Counsel; Shri Rajshekhar Rao, Learned Senior Counsel for Appellant in Competition Appeal (AT) No.07 of 2023; Shri Abhimanyu Bhandari, learned Counsel has appeared in Competition Appeal (AT) No.08 of 2023; we have heard Shri Buddy Ranganadhan, learned Counsel in Competition Appeal (AT) No.09 of 2023 for the Appellant and Shri Yadhunath Bhargavan, learned Counsel appeared in Competition Appeal (AT) No.10 of 2023 for the Appellant. Shri Naveen R Nath, learned Senior Counsel with Shri Udayan Jain, learned Counsel appeared for Competition Commission of India. We have heard Shri Mukul Rohatgi, learned Senior Counsel, Shri Arun Kathpalia and Shri Krishnendu Datta, learned Senior Counsel for Respondent No.2 - AGI; Shri Vikram Nankani, learned Senior Counsel has appeared for RP, Respondent No.3. 9. The learned Senior Counsel appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction to the parties of combination to publish the details of the combination for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination, which procedure was skipped by the Commission. The interpretation put by the CCI to Section 29 (1) and (2) is not in accord with the scheme of the provisions of the Act. Section 30 itself provides that when a notice under sub-section (2) of Section 6 has been received, the Commission shall examine such notice and form its prima facie opinion under sub-section (1) of Section 29 and proceed as per provisions contained in that Section. Section 30 itself makes it clear that after formation of prima facie opinion under Section 29, sub-section (1), other part of Section 29 has to be followed as mandated by Section 30. Mandatory procedure has to be followed even where modification is offered under Regulation 25 (1-A) of the Combination Regulations, 2011. 12. As per Regulation 19 of the Combination Regulations, 2011, the Commission may accept appropriate modifications offered by the parties before forming a prima facie opinion under Section 29, sub-section (1). The Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by the CCI. None of the Appellant(s) can be held to be aggrieved person within the meaning of Section 53B. The word 'aggrieved' connotes direct legal grievance, not the mere displeasure or an indirect legal grievance of the Appellant(s). The person aggrieved ought to refer to a person directly aggrieved by the order. The Appellant(s) being outsider to the proceedings, cannot be held to be aggrieved person. Hence, the Appeal(s) are liable to be rejected on this ground alone. 15. The CCI has followed the statutory process as provided in the Act and the Combination Regulations, 2011. After receipt of notice under Section 6, sub-section (2) on 03.11.2022, the CCI scrutinized the notice and asked the Acquirer to remove certain defects and provide certain clarification and documents. The Commission after receipt of the response to the letters issued to Respondent No.2 to provide documents and clarifications, considered the entire matter in its Meeting dated 09.02.2023 and formed a prima facie opinion that proposed combination is likely to cause AAEC. A show-cause notice dated 10.02.2023 was issued to Respondent No.2. Reply to show-cause notice was given by Respondent No.2 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne the notice under Section 6, sub-section (2) of 03.11.2022. 18. The learned Senior Counsel appearing for AGI also contended that none of the Appellant(s) have any locus to file the Appeal(s). The Appellant(s) cannot be said to be aggrieved person within the meaning of Section 53B. The Appellant(s) being not party to combination proceedings have no right to question the order dated 15.03.2022. It is submitted that the CCI is an Expert Body and it having taken the decision after following the due process of law, the Appellate Tribunal shall not substitute its own determination for determination which has been provided by an Expert Body. The information submitted by AGI were information, which were in public domain, which were provided by Resolution Professional of HNG. The RP having examined the Resolution Plan submitted by Respondent No.2 and having found it compliant with IBC Code has placed it before the CoC, which clearly indicates that Respondent No.3 has no objection regarding acquisition by Respondent No.2. Referring to the Appeal filed by INSCO, it is submitted that INSCO being Resolution Applicant, whose bid has not been approved by the CoC, has no occasion to file this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or word 'parties' occurring in Section 29(1) has to be read singularly? (III) Whether non-issuance of Show Cause Notice to HNG vitiates the order of approval granted by the Commission under Section 31, sub-section (1)? (IV) Whether after formation of prima-facie opinion that combination is likely to cause an appreciable adverse effect on competition by the CCI under Section 29, sub-section (1), there was no occasion to form again a prima facie opinion under Section 29(2) after receipt of response to the Show Cause Notice and the CCI was required to complete the further process under Section 29(2) including direction to the parties to the combination to publish details of combination? (V) Whether the process as contemplated under Section 29, sub- section (2) having not been completed by the CCI before passing the order dated 15.03.2023, the order passed by the CCI is against the procedure prescribed under Section 29 and deserved to be set aside? (VI) Whether inspite of Respondent No.2 along with response to Show Cause Notice having offered modification to address the prima facie concern expressed in the said Show Cause Notice as per Regulation 25 (1) (a) of 2011 Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edium scale manufacturers of glass based out of Uttar Pradesh representing the interests of such MSME Glass Manufacturers in Uttar Pradesh. The constituent members of the Appellant operate with at least 35 furnaces installed with currently 27 furnaces operational in Firozabad cluster and 5 lacs people are directly and indirectly involved in the business of the members whose livelihood depend on such employment. The Appellant's business turnover in aggregate stands at Rs. 3000 Crore approx. and annual GST contribution is Rs. 550 Crore. The Appellant shall submit relevant documents in support of this data and information, as and when directed by this Hon'ble Appellate Tribunal." 24. In sub-paragraph 7(vi), the Appellants have further elaborated the consequences of acquisition of HNG by AGI. 7(vi)(h) states as follows: "(h) Merger of Respondent No. 3 with Respondent No. 2 being the largest players in the relevant market would affect product pricing, encourage predatory pricing, encourage cartelisation and severely affect the business of several industries that are dependent on the container glass industry including the food, liquor, pharma and home décor industry, amongst o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e court in approaching the question as to what the words 'person aggrieved' mean in any particular statute." If I may say respectfully I fully endorse this approach. I am now in a position to examine the Advocates' Act but before so I must refer to a case near in point to this case, than any considered before." 27. Another Judgment relied upon by Respondent is AIR 1976 SC 578, "Jasbhai Motibhai Desai Vs. Roshan Kumar, Haji Bashir Ahmed & Ors". wherein paragraph 48, Hon'ble Supreme Court while considering the Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 25 entitlement of Appellant in that case to file an Appeal made following observations: "48. In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right. He has not sustained injury to any legally protected interest. In fact, the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something. He has not been subjected to a legal wrong. He has suffered no legal grievance. He has no legal peg for a justiciable claim to hang on. Therefore, he is not a 'person aggrieved' and has no locus stan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the contesting respondents that sub-section Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 27 (1) of Section 129-A entitles any and every person feeling aggrieved by the decision or order of the Collector of Customs as an adjudicating authority, to prefer statutory appeal to the Appellate Tribunal. Neither the Central Government, through Industries Department, nor the rival company or industry operating in the same field as the importer can as a matter or right prefer an appeal as 'person aggrieved' is wider than the phrase 'party aggrieved'. But in the entire context of the statutory scheme especially sub- section (3) of Section 129-A it has to be held that only the parties to the proceedings before the adjudicating authority Collector of Customs could prefer such an appeal to the CEGAT and the adjudicating authority under S.122 can prefer such an appeal only when directed by the Board under Section 129-D(1) and not otherwise. It is easy to visualise that even a third party may get legitimately aggrieved by the order of the Collector of Customs being the adjudicating authority if it is contended by such a third party that the goods imported really belonged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st on such performance. The existence of such right is a condition precedent for invoking the writ jurisdiction of the courts. It is implicit in the exercise of such extraordinary jurisdiction that, the relief prayed for must be one to enforce a legal right. In fact, the existence of such right, is the foundation of the exercise of the said jurisdiction by the Court. The legal right that can be enforced must ordinarily be the right of the appellant himself, who complains of infraction of such right and approaches the Court for relief as regards the same. (Vide State of Orissa v. Madan Gopal Rungta, Saghir Ahmad & Anr. v. State of U.P., Calcutta Gas Company (Proprietary) Ltd. v. State of West Bengal & Ors., Rajendra Singh v. State of Madhya Pradesh and Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar & Ors.)." 31. The above judgements in different context had occasion to examine the expression "aggrieved person". Respondents relying upon the said judgements have contended that since the Appellant has not suffered any legal injury, they have no right to challenge the order of the Competition Commission of India. 32. One more Judgment which has been relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Respondents, Appellant has placed reliance on the judgement of the Hon'ble Supreme Court in "Samir Agarwal Vs. CCI & Ors.", 2021 3 SCC 136. Judgment of the Samir Aggarwal was delivered by the Hon'ble Supreme Court in reference to information submitted by the Appellant to initiate an enquiry under Section 26(2) of the Competition Act, 2002 into the alleged anti-competitive conduct of ANI Technologies Pvt. Ltd. (OLA) and Uber India Systems Pvt. Ltd. where Hon'ble Supreme Court has occasion to consider the locus standi. Hon'ble Supreme Court in the case of Samir Agarwal has held that in the context of the Competition Act, the expression a 'person aggrieved' has to be understood widely and not be constructed narrowly as was done in Adi Pherozshah Gandhi. Following observation was made in paragraph 21 and 23: "21. Clearly, therefore, given the context of the Act in which the CCI and the NCLAT deal with practices which have an adverse effect on 27 competition in derogation of the interest of consumers, it is clear that the Act vests powers in the CCI and enables it to act in rem, in public interest. This would make it clear that a "person aggrieved" must, in the context of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country: Provided further that, the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with any statutory authority or department of Government." 36. The present is a case where Appellants are challenging the order passed by the Commission approving the combination of two biggest market players in container glass industry. It is contended in the Appeal that approval of the combination has been done in breach of the procedure prescribed in the Competition Act. We have noticed the pleading in C.A. (AT) No. 7/2023 where it is specifically pleaded that Appellant is also a body of micro and small manufacturers of glass based in UP which represent the interest of MSME Glass Manufacturer. The Appellant in the Appeal pleads and has enumerated various consequences of combination of two largest players in market. The Appellant expresses apprehension and filed objection before the CCI even before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the law laid down in 'Samir Aggarwal' and the pleadings of the Appellant (UP Glass Manufacturer Syndicate), we are satisfied that the Appeal filed by the Appellant cannot be thrown out on the ground of locus. Appellant who had filed Letters before the CCI beginning from 07.10.2022 and have been expressing their apprehension of appreciable adverse effect on competition, was also found true by the Commission while issuing show cause notice under Section 29(1). It is appropriate that pleas raised by the Appellant in the Appeal questioning the order of the commission, be considered on merits and answered, instead of throwing the appeal on the ground of locus. We thus reject the objection of the Respondents that none of the Appellants have locus to file the Appeal. We having found the Appellant-UP Glass Manufacturer Syndicate having locus to challenge the order, and having decided to proceed to examine the challenge on merits it is unnecessary to deal with the locus of other three Appellants in Competition Appeal (AT) No. 08 of 2023, 09 of 2023 and 10 of 2023. In result, we reject the objections of the Respondents regarding locus and proceed to decide the Appeals on merits. Poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t words in the singular shall include the plural, and vice versa. There can be no quarrel to the provision of General Clauses Act that words in singular includes plural and vice versa but when we look into the specific purpose and object which is delineated by Section 29(1), in show cause notice to both the parties, we cannot agree with the submission of the CCI that parties in the present case shall only be the AGI who has given notice under Section 6(2). There can be no doubt that Respondent No. 2-AGI who has given notice under Section 6(2) is included within the definition of parties. The show cause notice specifically required to be given to both of them. The statute clearly contemplates issuance of show cause notice to both the parties of the combination. 44. We thus answer Point No. II holding that Section 29(1) of the Act, contemplates that show cause notice has to be issued to both parties to the combination i.e. acquirer and target entity. Point No.III 45. We having found that show cause notice was required to be issued to both the Acquirer and Target Entity and in the present case shows cause notice by the Competition Commission has been issued only to Acquirer i.e. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re all in public domain which has been used by Respondent No. 2 in submitting the notice. We are of the view that by mere non-issuance of notice to Respondent No. 3, the proceedings before the CCI need not be annulled. We thus answer Point No. III, accordingly. Point Nos. IV, V and VI 47. The learned Counsel for both the parties have addressed elaborate submissions on interpretation of Section 29, 30 and 31 as well as Combination Regulations 2011. Before we enter into respective submissions of learned Counsel for the parties, we need to notice relevant provisions of the Act in the above reference. Section 6 deals with 'Regulation of combinations'. Section 6, sub-section (2) oblige any person or enterprise, who purposes to enter into a combination to give a notice to the Commission in the form as may be specified. Section 29 deals with 'Procedure for investigation and combination'. Section 29 provides as follows: "Procedure for investigation of combination 29. (1) Where the Commission is of the prima facie opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, it shall issue a notice to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) of section 6, the Commission shall examine such notice and form its prima facie opinion as provided in sub-section (1) of section 29 and proceed as per provisions contained in that section." 49. Section 31 deals with 'Orders of Commission on certain combinations' is as follows: "Orders of Commission on certain combinations 31. (1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6. (2) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect. (3) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such combination. (4) The parties, who accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4[two hundred and ten days from the date of notice given to the Commission under subsection (2) of section 6], pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub-section (7), the combination shall be deemed to have been approved by the Commission. Explanation - For the purposes of determining the period of 55[two hundred and ten] days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub- section (8) shall be excluded. (12) Where any extension of time is sought by the parties to the combination, the period of ninety working days shall be reckoned after deducting the extended time granted at the request of the parties. (13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any other law for the time being in force as if such acquisition or acquiring of control or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination to the parties to such combination. (1A) Along with their response to the notice issued under sub-section (1) of section 29 of the Act, the parties to the combination may offer modification to address the prima facie concerns in the said notice and on that basis, the Commission may approve the proposed combination under sub-section (1) of section 31 of the Act: Provided that in such a case, the additional time, not exceeding fifteen days, needed for evaluation of the modification offered, shall be excluded from the period provided in sub-section (2A) of section 6 of the Act, sub- section (2) of section 29 of the Act and subsection (11) of section 31 of the Act. (2) Where the parties to the combination have accepted the modification proposed by the Commission under sub-section (3) of the section 31 of the Act or the Commission agrees with the amendment to the proposed modification by the parties and approves the combination under sub-section (7) of section 31 of the Act or the parties, in terms of the provisions of subsection (8) of section 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the combination. The Appellants' contention is that Section 29, sub-section (2), insofar as it directs for publishing the details of the combination having not been complied, the statutory procedure has not been complied by the Commission, resulting in vitiation of the order approving the combination dated 15.03.2023. The contention of the CCI and other Respondents is that formation of prima facie opinion is required at the second stage as per Section 29 sub-section (2), when response is received to the notice and the requirement of publication of details of the combination comes into play only when prima facie opinion is formed at the second time. 53. We have pondered upon the rival submissions of both the parties. The plain reading of Section 29, sub-section (2) indicates that the Commission, if it is prima facie of the opinion that combination is likely to have an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, or the receipt of the report from Director General called under sub-section (1A), whichever is later, direct the parties to the said combination to publish detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 29, sub-section (2). We may refer to Combination Registration No.C-2016/05/400 decided on 8th June, 2017, where after issuance of a show-cause notice under Section 29, sub-section (1), the Commission formed a prima facie opinion under Section 29, sub-section (2) and thereafter directed the parties to publish details of the combination. Paragraph 21 of the judgment is referred in this context: "21. The response to the SCN was received on 20th February, 2017, which was subsequently amended vide letters dated 1st March, 2017 and 2nd March, 2017 ("Response to SCN"). The Commission, in its meeting held on 3rd March, 2017, considered Response to SCN, and formed a prima facie opinion, under sub-section (2) of Section 29 of the Act, that the proposed combination is likely to cause AAEC in markets in India. Accordingly, under sub-section (2) of Section 29 of the Act read with Regulation 22 of the Combination Regulations, the Commission directed the Parties to publish details of the proposed combination, within ten working days of the said direction, for bringing the proposed combination to the knowledge or information of the public and persons affected or likely to be affected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Commission in the SCN. Accordingly, the Commission was of the view that the divestments proposed in the Response to SCN cannot be accepted and competition concerns, as raised in SCN, continue to exist. 13. In view of the above, in accordance with Section 29(2) of the Act read with Regulation 22 of the Combination Regulations, the Commission decided to issue a direction to the Parties to publish details of the Proposed Combination within ten working days of the said direction for bringing the Proposed Combination to the knowledge or information of the public and persons affected or likely to be affected by such Proposed Combination. The said direction was communicated to the Parties vide letter dated 17.05.2018." 58. To the similar effect, we find another order of the Commission dated 14.06.2018 in Combination Registration No.C-2017/08/523. 59. The decided cases of the Commission, thus, clearly indicate that prima facie opinion at the second stage, i.e., at the stage of Section 29 sub-section (2) is formed by the Commission and in event the prima facie opinion is formed at the second stage, only then the Commission proceeded to direct the publication of details. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he parties or other stakeholders fail to provide their views / objections within the respective stages under Section 29(1), (3), (4) and (5) of the Act, it is not open for them to adduce new material / evidence during the 45 days given to the Commission under Section 29(6) of the Act. If one contemplates otherwise, the combination inquiry would be a never ending process without any finality." 60. On the other hand, there are cases of the Commission, where the Commission after receiving the response to the show-cause notice under Section 29, sub-section (1), wherein modifications were suggested, accepted the modification and proceeded to approve the combination under Section 31, sub-section (1) without proceeding further under Section 29, sub- section (2). In this context, reference is made to Combination Registration No.C-2020/03/735 decided on 18.06.2020 where the show-cause notice under Section 29, sub-section (1) was issued by the Commission on 22.05.2023 and thereafter response was given to the show-cause notice and along with the response, voluntary remedies proposal was given under Regulation 25(1A). In paragraphs 13 and 15, following have been noted: "13. Accordingly, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sub-section (1) of Section 29 of the Act, to the Acquirer. Accordingly, SCN dated 24th April, 2017 was issued to the Acquirer, directing it to respond, in writing, within thirty days, as to why investigation in respect of the Proposed Combination should not be conducted. The Acquirer filed response to the SCN on 13th May, 2017 ("Response to SCN"), along with a voluntary remedy proposal ("Remedy Proposal")." 64. The above judgments clearly indicate that the Commission has followed the procedure of considering the reply to show-cause notice and in event a remedial proposal/ modification submitted by noticee and the same was found adequate to address the AAEC, the Commission proceeded to approve the combination without proceeding further under Section 29, sub- section (2). 65. In the present case, we are of the view that as per the statutory provisions contained in Section 29 and the Regulations 2011, after receipt of the response to show-cause notice, the Commission has to form prima facie opinion at the second stage as required by Section 29, sub-section (2) and in cases where prima facie opinion at the second stage under Section 29, sub-section (2) has not been formed and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission, the Commission should direct publication of details of the combination. The submission of the Appellant on the strength of Section 30, thus, cannot be accepted. Point Nos. VII and VIII 67. The contentions advanced by the learned Counsel for the Appellant is that even the modification suggested by Respondent No.2 do not adequately address the AAEC and the Commission has not adequately examined the said submission. 68. The Commission has given a detailed analysis of modification proposed by AGI from paragraph 89 onward. The submission of the Appellant that modification proposed has not been adequately considered by the Commission cannot be accepted in view of the consideration in detail given by the Commission. It is useful to extract paragraphs 99, 100 and 101 of the order of the Commission, which is to the following effect: "99. The voluntary modification proposed by the Acquirer has been considered and accepted by the Commission while undertaking a holistic assessment of the transaction. All things considered, including the presence of limited competitive constraints from other competitors, imports, buyer power, the operational conditional of other plants and the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons by a Constitution Bench of the Hon'ble Supreme Court and observed that when a power is given to an Expert Body to determine a question of law and fact, the same is generally treated as final. In paragraph 104 and 105, following was laid down: "104. Be that as it may, our conclusion on this aspect of the matter is that the antecedent materials (the Reports) on the basis of which the norms were recommended and then prescribed under Para 7 of the DPCO 1995 are subject to lesser judicial scrutiny, limited perhaps only to the application of completely erroneous principles. The burden for demonstrating the application of completely erroneous principles is heavy as it is and it is heavier still if the antecedent material is prepared by experts. The onus of discharging the heavy burden must necessarily fall on the challenger, and Cipla has not been able to sustain the challenge. There can be and are differences of opinion but we cannot and will not reconsider the opinion of experts, particularly in matters of economic affairs or other economy-related issues unless there is extremely strong reason to do so. 105. We end this discussion with a conclusion arrived at by the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the commission by training and experience is qualified to form. ... It is not the province of a court to absorb this function to itself. ... The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body.'" (emphasis supplied)" 71. The above is also another reason, which does not warrant any interference in the decision of the Expert Body, i.e., the Competition Commission of India, more so, when it has been given after following the procedure prescribed in the Act and the Regulations. Point No. IX 72. The Appellant - The U.P. Glass Manufacturers Syndicate has questioned the impugned order dated 15.03.2023 also on the ground that it has been passed in violation of principles of natural justice. It is contended that even though the Appellant had filed the objections to combination notice on 07.10.2022, which was acknowledged by the CCI (reliance has been placed on the letter dated 23.02.2023 along with which the order dated 22.02.2023 of the CCI was forwarded to the Appellant), where it was communicated that objection raised by the Appellant shall be duly considered at the appropriate time. The Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or information of the public and persons affected or likely to be affected. The stage for filing any objection or giving any information by public in general including the Appellant - UPGMS can arise only when details of the combination are published under Section 29, sub-section (2). We have already noticed that in the present case, stage of direction to publish details of combination had not arisen, since there was no prima facie opinion formed at the second stage under Section 29, sub- section (2). The Appellant itself had brought on record the letter dated 23.02.2023 written by the CCI to the Appellant annexed therewith the order dated 22.02.2023 of the CCI. In the order dated 22.02.2023, the Commission noticed the letters sent by the Appellant. The Appellant was communicated that proceedings before the Commission are not open to public. Paragraphs 5 to 9 of the order dated 22.02.2023 is as follows: "5. It is also important to note that by virtue of the provisions contained in Regulation 47 of The Competition Commission of India (General) Regulations, 2009 ('General Regulations'), the proceedings before the Commission are not open to public. However, if required, as a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29(3) of the Act and treat the letter filed as an application under Section 29 of the Act read with Sections 19 and 35 of the Act, it may be noted that the initiation of proceedings under Section 29 of the Act is to be based on the Commission's own assessment. The submissions of objections under Section 29(3) is to be preceded by the Commission's directions to the parties to publish details of the proposed combination. In the absence of any such directions, the submissions under Section 29(3) are premature at this stage." 74. The Appellant, thus, was appropriately communicated that they cannot be allowed to participate as noted above under the scheme of the Act. The right to third parties to submit objections arises when the Commission issues direction to the parties to publish the details of the proposed combination, which stage never arose in the present case. 75. The Hon'ble Supreme Court in (2010) 10 SCC 744 - Competition Commission of India vs. Steel Authority of India Limited and Anr. had occasion to consider the principles of natural justice in reference to Competition Act, 2002. The Hon'ble Supreme Court noticed the cases where principles of natural justice can be exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to convey the direction of the Commission to the Director General. After the receipt of the report of the Director General, it has to issue notice to the parties concerned." 78. Cumulative reading of these provisions, in conjunction with the scheme of the Act and the object sought to be achieved, suggests that it will not be in consonance with the settled rules of interpretation that a statutory notice or an absolute right to claim notice and hearing can be read into the provisions of Section 26(1) of the Act. Discretion to invite, has been vested in the Commission, by virtue of the Regulations, Competition Appeal (AT) Nos.07, 08, 09 & 10 of 2023 73 which must be construed in their plain language and without giving it undue expansion." 77. We, thus, are of the considered opinion that in the procedure adopted by the Commission in inquiring the notice under Section 6, sub-section (2), there is no violation of principles of natural justice, which can be attributed to the Commission. 78. The learned Counsel for the Appellant(s) have also submitted that the Commission hurriedly proceeded to approve the combination by order dated 15.03.2023, whereas modifications were submitted on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iate stage."
80. While noticing the averments in context of paragraph 2, it is clear that the contents of paragraph 2 were nothing but reiteration of the contents of the earlier order dated 22.02.2023. The submission of the Appellant that its concern was not addressed by the Commission is also not correct, since the Commission by detailed order considered all aspects, facts and figures of the combination. The submission that order dated 15.03.2023 did not address the concern of the Appellant regarding AAEC also cannot be accepted.
81. In view of the foregoing discussion and conclusions arrived by us, we are satisfied that the order of the Competition Commission of India dated 15.03.2023 has been passed in accordance with the procedure prescribed under the Act and the Regulations. The Commission in its order has considered all relevant aspects and the materials on the record and has not committed any error in approving the combination in exercise of its power under Section 31, sub-section (1). No grounds have been made out to interfere with the order dated 15.03.2023. All the Appeal(s) are dismissed. Parties shall bear their own costs. X X X X Extracts X X X X X X X X Extracts X X X X
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