50A

1ST SAM & Co. – JGLS ANTITRUST LAW MOOT COURT COMPETITION, 2019

BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL

Competition Appeal (AT) No.___/2019

Amar Napwell Pvt. Ltd., Appellant No. 1

Akbar Napwell Pvt. Ltd., Appellant No. 2

Antony Napwell Pvt. Ltd., and Appellant No. 3

Slumber Pvt. Ltd. Appellant No. 4

V.

Competition Commission of Bohemia, Respondent No. 1

Twirl-On Pvt. Ltd., Respondent No. 2

CMM, Railway Coach Factory, Bohemia, Respondent No. 3

Mrs. Bhutani Respondent No. 4

ON BEHALF OF THE APPELLANTS

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 TABLE OF CONTENTS

S. No. Particulars Page No.

1 List of Abbreviations 3

2 List of Sources/Authorities 5

3 Statement of Facts 8

4 Statement of Jurisdiction 17

5 Questions Presented 18

6 Summary of Arguments 19

7 Arguments Advanced 21

8 Prayer Sought 40

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 LIST OF ABBREVIATIONS

Abbreviated use Expansion

AAEC Appreciable Adverse Effect on Competition

Art Article

CCB Competition Commission of Bohemia

CCI Competition Commission of India

CIAB Consumer Interest Association of Bohemia

Co Company

COMPAT Competition Appellate Tribunal

DG Director General

EC European Commission

ECJ European Court of Justice

ECR European Court Report

Edn Edition

EU European Union

Ltd Limited

MRTPC Monopolies and Restrictive Trade Practices Commission

OECD Organization for Economic Co-operation and Development

OJ Official Journal

Ors Others

Pvt Private

r/w read with

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S Section

SC Supreme Court of India

TFEU Treaty on the Functioning of the European Union

USSC Supreme Court of the United States

& And

¶ Paragraph

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 LIST OF SOURCES/AUTHORITIES

STATUTES

The Constitution of India

Competition Act of India, 2002

Competition Commission of India (Lesser Penalty Regulations), 2009

BOOKS

Richard Whish & David Bailey, Competition Law (8th Edition, 2015) ……………

Dr. V.K. Agarwal, Competition Act, 2002, 2011

Phillip E. Areeda &Herbert J. Hovenkamp, “Antitrust Law: An Analysis of Antitrust Principles

and Their Application” para.1434(D)(2) (2d Ed. 2000)

CASES

Abhiram Singh and Ors v C.D. Commachen (Dead) by L.Rs and Ors ……27

Arvind Mohan Sinha v. Amulya Kumar Biswas &Ors. AIR 1974 1818 ……26

Bell Atlantic Corp v. Twombly, 550 U.S. 544(2007) ……30

Bhagat Ram v. State of Himachal Pradesh &Ors.AIR 1983 SC 454 ……26

Builders Association of India v Cement Manufacturers Association and Ors,2016 SCC OnLine

CCI 46 ……32

Calcutta Discount Company Limited v. Income Tax Officer1961 SCR (2) 241 ……36

Cartelisation in respect of zinc carbon dry cell batteries market in India Vs. Eveready Industries

India Ltd & Ors ……24

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CCI v. Coordination Committee of Artists and Technicians of WB Film and Television Industry,

AIR 2017 SC 1449 ........30

CCI v. Steel Authority of India Ltd. and Anr, (2010) 10SCC 744. ………..29, 38

Commissioner of Income Tax, Bombay City I, Bombay vs. Jubilee Mills Ltd., Bombay1963 48

ITR 9 SC. ........29

Delhi Jal Board v Grasim Industries 2017 SCC OnLine CCI 48 ……32

Deutsche Bahn and others v European Commission (ECLI:EU:C:2014: 2365) Case C-

583/13P...... ........38

Dilip N. Shrof v. Joint CIT, (2007) 6 SCC 329 ........29

Dyestuffs, Imperial Chemical Industries v. Commission of the European Communities ........29

Excel Crop Care Limited v Competition Commission of India and Another (2017) 8 SCC 47....26

In Re: Anticompetitive conduct in the Dry-Cell Batteries Market in India ........24

In Re: Cartelisation by broadcasting service providers by rigging the bids submitted in response

to the tenders floated by Sports Broadcasters. Vs. Essel Shyam Communication Limited &

Ors.,Suo Moto Case No. 2 of 2013. ........25

In Re: Cartelization in respect of tenders floated by Indian Railways for supply of Brushless DC

Fans and other electrical items (Suo Moto Case No. 03 of 2014) ..22, 3

In Re: Matrimony.com Limited Informant v Google India Private Limited Case No. 07 of

2012..... .......26

India Vs. Eveready Industries India Ltd & Ors Suo Moto Case No. 2 of 2016 ........24

M/s. Gulf Oil Corporation Ltd. v. Competition Commission of India & Ors., [2013] Comp

AT 122, ¶64 ........26

Maneka Gandhi v. Union of India AIR 1978 SC 597 ........39

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Matsushita v. Zenith Radio Corp, 475 U.S. 574(1986) ........30

Monsanto Co. v. Spray-Rite Service Corp, 465 U.S. 752 (1984) ........30

Rajasthan Cylinders vs Union of India 2018 SCC OnLine SC 1718 ........29, 30

Shri Surinder Bhakoo v The HDFC Bank Ltd and Ors,2011 SCC OnLine CCI 8: [2011] CCI

10...... ....................34

Sri Krishna Private Ltd., v. I.T.O (1996) 9 SCC 534 ....................36

Theatre Enterprises v. Paramount Films ....................30

WEBSITES REFERRED

www.cyrilamarchandblogs.com

www.justice.gov

www.manupatrafast.com

www.oecd.org

www.scconline.com

ARTICLES, REPORTS AND RESEARCH PAPERS:

Mihir Kamdar, Dawn raids amendment: Small step or giant leap?; India Business Law Journal;

February 2013

*the statutes and websites have been used throughout the memorial; therefore, a specific page

cannot be mentioned for them*

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 STATEMENT OF FACTS

1. Bohemia is a republic in South Asia, whose laws are pari materia with the laws of India.
Bohemia enacted its Competition Law, the Bohemian Competition Act (“Competition Act”), in

2002.

2. The Competition Commission of Bohemia (“CCB”), which is established under the aegis of the
Competition Act and is governed by associated regulations, notifications, and amendments

published in the Gazette of Bohemia from time to time such as the Competition Commission of

Bohemia (Lesser Penalty) Regulations, 2009 (“Lesser Penalty Regulations”), treats decisions of

the Competition Commission of India as well as other authorities as having high persuasive

value. The CCB also regards the competition regulators of the European Union and the United

States of America highly, and relies on established precedent from these jurisdictions as well.

3. Napwell Mattress Pvt. Ltd. (“Napwell”) was previously the largest and most successful mattress
manufacturer in Bohemia enjoying a share of 60% as of 2010 in the market for manufacture and

sale of foam mattresses to retail customers in Bohemia. The other market players included Twirl-

On Foams Pvt. Ltd. (“Twirl-On”) with a share of 25% and Slumber Beds Pvt. Ltd. (“Slumber”)

with a share of 5%. The remainder of the market was fragmented among the unorganized sector

mattress suppliers in Bohemia.

4. In 2011, CCB passed an order under Section 27 of the Competition Act, finding Napwell to be
abusing its dominant position within the terms of Section 4 of the Competition Act, and also

ordered for a division of Napwell under Section 28. Following the order, Mr. Raichand divided

every department of Napwell into three parts and each venture capital fund appointed his three

sons, Amar, Akbar, and Antony, as their respective managing directors. These new companies

were registered as Amar Napwell Pvt. Ltd. (“Amar Napwell”), Akbar Napwell Pvt. Ltd. (“Akbar

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 Napwell”), and Antony Napwell Pvt. Ltd. (“Antony Napwell”), all of which were also qualified

to participate in tenders floated by the CMM, Rail Coach Factory with respect to berths in

railway coaches.

5. Since 2013, the market shares which would have been attributed to Napwell are now evenly
divided among the three brothers. There has been little change in the market presence of Twirl-

On and Slumber in Bohemia.

6. On June 2, 2017, the CCB received an information from the Chief Material Manager, Rail Coach
Factory alleging that Amar Napwell, Akbar Napwell, Antony Napwell, and Twirl-On, were

bidding collusively by quoting similar prices on the same dates with a deviation of 10% or less

as well as submit their documentation in the same language and format as each other in response

to the NITs issued by the Rail Coach Factory for foam berths in railway coaches in Bohemia.

Being the only manufacturers in Bohemia who fulfilled all the quality and quantity criteria of the

Rail Coach Factory, since 2013, each of the four enterprises had taken turns in quoting the lowest

bid value to ensure that they won the bid, although such bid value would inevitably shoot back

up the following year. It was the Informant’s chief allegation that these prices fell well outside

the budget of the Bohemian Railways, hence, the Bohemian Railways was no longer a profit-

making enterprise.

7. On June 5, 2017, the CCB received information from Mrs. Bhutani, a retail customer, alleging
that each of the suppliers, namely Amar Napwell, Akbar Napwell, Antony Napwell, Twirl-

On,and Slumber, priced similar categories of mattresses similarly. The companies were pricing

their respective foam mattresses which were sold for household and hotel use in a collusive

manner.

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8. Subsequently, on June 7, 2017, the CCB members met and agreed that the information received
by the informants provided sufficient indication that “the mattress industry in Bohemia appears

to be rampant with collusive activity and bid rigging, as a result of which both small retail

customers as well as large institutional consumers are harmed, and that such practices would

also prevent the entry of a new player into the market”. The CCB members proceeded to instruct

the Director, Legal Affairs of the CCB to prepare the prima facie order for their signature and

after placing his signature on the order in the morning of June 8, 2017, a copy of the order was

dispatched to the office of the Director General, CCB (“DG”) with a note on top stating “For

immediate action”.

9. On the morning of June 9, 2017, the DG conducted a dawn raid at the registered office of
Slumber, and seized documents, records, and computers. The DG had obtained all the necessary

permissions for conducting the dawn raid, such as obtaining a warrant from the Chief

Metropolitan Magistrate. Knowing this, Antony considered that while Slumber barely had a say

in the business decisions made by the others and its database and records may likely have had

evidence of the meetings they conducted on the sidelines of the India Mattress Expo that all the

companies attended annually. He also considered that while Slumber did not have any

information regarding the bid rigging for the Indian Railways’ NITs, Twirl-On, being the next

smallest player, may have had apprehensions about being penalized by the CCB and was likely

to file a leniency petition before the CCB.

10.Over the weekend of June 10-11, 2017, Antony, Amar and Akbar explored the idea of filing a
leniency petition themselves. On June 13, 14, 15, 2017, Antony Napwell, Akbar Napwell, and

Amar Napwell respectively filed for leniency with the CCB along with corresponding

documents. Subsequently, on June 25, 2017, Twirl-On also filed for leniency with the CCB with

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 all the corresponding documents previously submitted by Antony Napwell, Akbar Napwell, and

Amar Napwell.

11.Pursuant to which DG began the investigation, during the course of taking depositions of
representatives of the various parties involved, Twirl-On’s representative stated that “the best

place to go fishing would be in the inbox”. Thereafter, the DG issued requests for information to

all the parties directing them to submit the e-mail dumps of all senior personnel of each of the

companies for the last five years. Antony Napwell, Akbar Napwell, and Amar Napwell

challenged the request of DG before the Bohemian High Court stating that the DG did not have

the authority to do so. The Bohemian High Court agreed with the brothers but held that DG still

had the authority to call for thee-mails of the managing directors, i.e., Amar, Akbar, and Antony.

12..While going through the emails received by the DG, the DG found various emails in the
‘Deleted Items’ of Akbar’s inbox which were sent by the family lawyer and suggested that, in

order to ensure that each of the three brothers’ companies gets some relief from the CCB, they

must each provide information/documents which are different from each other’s records and

which would be seen to independently add value to the CCB’s investigation. The DG observed

that the brothers had submitted the relevant documents in the following manner: a. Details of the

various meetings held by representative of each of the five mattress companies from 2013 to

2017, including the date, venue, time, and participants of such meetings –submitted by Antony

Napwell; b. Minutes of the above meetings, including details of the final price range within

which the companies agreed to sell mattresses of different categories –submitted by Akbar

Napwell; and c. Details of the common terms and conditions (including price considerations) to

be submitted in response to the respective NITs of the Chief Material Manager, Rail Coach

Factory –submitted by Amar Napwell.

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 Thereafter, the DG submitted its investigation report (“DG Report”) to the CCB on October

1, 2018finding Amar Napwell, Akbar Napwell, Antony Napwell, Twirl-On, and Slumber in

contravention of Section 3 of the Competition Act due to price fixing and separately, Amar

Napwell, Akbar Napwell, Antony Napwell, and Twirl-On in contravention of Section 3 of

the Competition Act due to bid rotation in the market for manufacture and supply of foam

berths in railway coaches in Bohemia.

13.The CCB invited the five mattress companies to provide their responses to the DG Report. While
Amar Napwell, Akbar Napwell, and Antony Napwell did not have any objections in their

responses, Twirl-Onfiled detailed objections to the DG Report, and contended that most of the

decisions were taken unilaterally by Amar Napwell, Akbar Napwell, and Antony Napwell which

together, for all intents and purposes, still remained a single economic entity despite the division

of the original Napwell by the CCB.To this end, Twirl-On submitted that, by virtue of always

being in the majority, Amar, Akbar, and Antony always voted in favor of a particular strategy as

a single block. Twirl-On also contended that the strategy of the brothers was adopted with the

aim of ensuring that they continued to enjoy approx. 20% market share each. 15.Amar Napwell,

in its objections, made the contention that the DG’s investigation was violative of the principles

of natural justice as it had not allowed Amar Napwell’s request for cross examination of the

representatives of Twirl-On and Slumber. Amar Napwell further contended that, without such

cross examination, it had been deprived of the opportunity to fully present its case.

14.Slumber, in its objections to the DG Report, submitted that there had been a gross violation of
the principles of natural justice by the CCB as it was practically impossible for the DG to have

conducted the dawn raid on the day immediately after the CCB’s prima facie order, on account

of the logistical and preparatory work required to conduct a dawn raid. It further contended that

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 it had been unfairly targeted and penalized as it was the smallest of the mattress manufacturers

and had very little control over the way the meetings used to proceed, and that the dawn raid

amounted to little more than a ‘fishing expedition’. When this argument was reiterated in the oral

submissions before the CCB, the CCB Chairman himself passed a comment that “Slumber was

the unfortunate bait which had been used to catch the bigger fish”.

15. Last, Slumber submitted that the DG had ignored its submissions against the Informant, the
Chief Material Manager of the Rail Coach Factory, which had abused its dominant position as

the sole government undertaking in charge of procurement of components for railway coaches.

Slumber premised this argument on the fact that it used to be one of the bidders for the NITs

issued by the Chief Material Manager in the 2000s –however, the Chief Material Manager raised

the minimum annual turnover requirement in its NITs for prospective bidders, which

automatically excluded smaller enterprises such as Slumber from bidding. In his concluding

statement, the representative of Slumber said that the alleged bid rigging situation alleged by the

Chief Material Manager is “a product of its own past mistakes”.

16.On April 30, 2019, the CCB passed an order –

2016-17;

b. Granting 30% leniency to Twirl-On on the grounds that although it did not provide any vital

disclosure, it did fully cooperate with the DG’s investigation;

c. Granting 30% leniency to Amar Napwell, Akbar Napwell, and Antony Napwell,

respectively, on the ground that although all of them provided vital disclosures, they, did not

fully cooperate with the DG’s investigation;

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 d. Dismissing all other objections raised by Twirl-On and Slumber regarding the objection

with respect to cross examination, the CCB observed that providing a right to submit a

response to the DG Report and submit its arguments in a hearing before the CCB satisfied

the due process requirements of a regulator such as the CCB. Regarding the allegations of

dominance by Twirl-On against Amar Napwell, Akbar Napwell, and Antony Napwell, as

well as by Slumber against the Chief Material Manager were the subject matter of a separate

case, and should be addressed by way of filing afresh information before the CCB.

17.Amar Napwell, Akbar Napwell, Antony Napwell, and Slumber have separately filed appeals in
challenge of the CCB’s order before the NCLAT.

18.The NCLAT has admitted the appeals and has decided to hear them together, and will now hear
all arguments, including the issues and contentions raised before the DG and the CCB, and the

recommendations and findings of the DG and CCB respectively.

APPENDIX – I

Market shares based on the sales of the market participants in each of these categories, for the

year 2013-2017:

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Based on the information provided by the leniency applicants, Amar Napwell, Akbar Napwell,

Antony Napwell, Twirl-On and Slumber the price range from 2013 to 2017 of various categories

of mattress is provided at Table A below – the same has been prepared in conjunction with

market studies and reports. These prices are w.r.t ‘King-sized’ mattresses which forms the upper

bracket of the market – all smaller mattresses are proportionately lesser in price. Further, the

dates on which the Opposite Parties revised their respective prices (provided in the respective

cells in Table A below) were on or shortly after the dates of the India Mattress Expo meetings.

Details of such meetings are provided below:

a. 2014 meeting: February 4, 2014 @ 1:00 PM

b. 2015 meeting: January 27, 2015 @ 10:00 AM

c. 2016 meeting: February 18, 2016 @ 8:00 PM

e. 2017 meeting: February 24, 2017 @ 8:30 PM

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 APPENDIX – II

Details of meetings attended by Amar Napwell, Akbar Napwell, Antony Napwell and Twirl-On

with respect to collusive bidding:

a. 2014 meeting: May 24, 2014 @ 9:00 AM

b. 2015 meeting: May 27, 2015 @ 8:00 AM

c. 2016 meeting: May 28, 2016 @ 9:00 AM

d. 2017 meeting: May 24, 2017 @ 8:30 AM

Below are the bidding quotations:

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 STATEMENT OF JURISDICTION

THE APPELLANTS ARE BEFORE THE HON’BLE NATIONAL COMPANY LAW

APPELLATE TRIBUNAL IN APPEAL TO THE ORDER PROVIDED BY THE

COMPETITION COMISSION OF BOHEMIA UNDER SECTION 53B OF THE

COMPETITION ACT OF BOHEMIA, 2002, PURSUANT TO THE REPORT SUBMITTED

BY THE LD. DIRECTOR GENERAL (DG) UNDER SECTION 26(3) OF THE ACT

AGAINST THE APELLANTS, UNDER SECTION 19(1)(a) WHEREIN THE APPELLANTS

WERE FOUND TO BE IN CONTRAVENTION OF VARIOUS PROVISIONS OF THE ACT.

Section 53B.- Appeal to Appellate Tribunal

(1) The Central Government or the State Government or a local authority

or enterprise or any person, aggrieved by any direction, decision or order

referred to in clause (a) of section 53A may prefer an appeal to the Appellate

Tribunal

BEFORE THE NATIONAL COMPANY LAW APPELLATE TRIBUNAL

THE APPELLANTS HUMBLY AND RESPECTFULLY

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 QUESTIONS PRESENTED

THE RESPONDENTS HAVE PLACED BEFORE THIS HON’BLE TRIBUNAL, THE

FOLLOWING ISSUES FOR ITS CONSIDERATION:

ON BEHALF OF AMAR NAPWELL, AKBAR NAPWELL & ANTONY NAPWELL

ISSUE 1: WHETHER OR NOT, THE PENALTY IMPOSED AND LENIENCY GRANTED

BY CCB TO AMAR NAPWELL, AKBAR NAPWELL & ANTONY NAPWELL IS

APPROPRIATE?

ON BEHALF OF SLUMBER

ISSUE 2: WHETHER OR NOT, SKUMBER HAS BEEN WRONGFULLY PENALIZED BY

CCB?

ISSUE 3: WHETHER OR NOT, THE ACTS OF DG CONSTITUTE VIOLATION OF THE

PRINCIPLES OF NATURAL JUSTICE?

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 SUMMARY OF ARGUMENTS

ISSUE 1: That The Penalty Imposed And The Leniency Granted Therein To The

Appellant No.1, Appellant No. 2 & Appellant No. 3 Is Not Appropriate

It is submitted that considering the fact that the Appellant No. 1, Appellant No. 2 & Appellant

No. 3 approached the CCB before a formal complaint was made or the official investigation

started against the alleged acts and the documents submitted by the said Appellants provided

true, full and vital disclosure along with the aiding in the investigation process by the DG, the

leniency given in not justified. It is also submitted that the penalty has been levied on the total

turnover and not on relevant turnover which makes the said penalty unjust as the principle of

proportionality and relevancy has been ignored.

ISSUE 2: That The Appellant No. 4 Has Been Wrongfully Penalized By CCB:

It is submitted that the Appellant No. 4 has not acted in contravention of section 3 as the gradual

increase in prices every year was due to the constant price parallelism in order to meet the

competition and in order to conclude the presumption of an anti-competitive agreement, there

need to me more factors than price parallelism that is parallelism plus factors. It is also submitted

that the meetings that the constant increase in sale price could also have been attributed to other

factors like increase in manufacturing price. It is also pertinent to note that none of the factors of

section 19 comes into picture as there has been no AAEC or prevention of any new entrant to the

market. Hence, the penalty levied by the CCB is not justifiable.

ISSUE 3: That The Acts Of Dg Constitute Violation Of The Principles Of Natural Justice

It is submitted that the due procedure has not been followed by the DG while conducting the

dawn raid as the term ‘reason to believe’ in not a mere subjective satisfaction but the belief

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therein has to be strongly founded. Given the short duration between the receipt of order and the

conduct of dawn raid, it is unlikely that such raid was aimed directly at Appellant No. 4 and such

claim is well supported by the statement of the Chairman of CCB who mentioned the raid to be a

necessary step to catch the ‘bigger fish’, hence the right to private inheritance as well as

principles of natural justice have been violated by such action of DG and the Appellant No. 4 has

been wrongly targeted by the CCB. In brief, the dawn raid so conducted was nothing more than a

‘fishing expedition’ and such action is strongly condemned worldwide given the violation of

Human Rights involved therein.

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 ARGUMENTS ADVANCED

ON BEHALF OF AMAR NAPWELL, AKBAR NAPWELL, AND ANTONY NAPWELL

ISSUE 1: THAT THE PENALTY IMPOSED AND THE LENIENCY GRANTED

THEREIN TO THE APPELLANT NO.1, APPELLANT NO. 2 & APPELLANT NO. 3 IS

NOT APPROPRIATE.

A. LENIENCY GRANTED IS INAPPROPRIATE.

1. It is humbly submitted that the Appellant No. 1, Appellant No. 2 & Appellant No. 3

approached the CCB with the leniency petition to seek remedy under the Lesser Penalty

Regulations, 2009 by providing the sufficient material to aid the CCB in investigation at

the same time pleading leniency for the acts so committed.

2. It is also submitted that there is no denial with respect to the acts that constitute the

contravention of section 3 of the act and that the material and documents submitted by

the said Appellants show the culpability of each of the parties including Appellant No. 4

and Respondent No. 2 but levying the same penalty on all the individual parties is not

justified as it was the Appellants herein who first approached the CCB with sufficient

material on the basis of which the investigation commenced.

3. It is pertinent to note in order to seek leniency under the said regulations, there have been

certain conditions which have to be complied with1 and the same have been met by the

Appellants herein.

4. That the said Appellant provided ‘full, true and vital disclosure’ as confirmed by CCB in

the impugned order, however it failed to appreciate that the Appellants also complied

throughout the investigation process including its employees. However, the request of the

1
Section 46 of the Act

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 CCB to provide information of all the senior personnel fell outside ambit of DG’s

authority which is why the said Appellants had to move to Bohemian High Court to

prevent the leak of private details of officials as well as business secrets to which the

Hon’ble High Court rightly observed that such request could not be made. However, as

per the said order of the High Court, the Appellants complied with the instructions which

related to call for the details of the managing directors i.e., Amar, Akbar, Antony and

provided the same. Apart from this one step where the DG made such request, which was

even unjust in the eyes of law, the Appellants had never become the obstacle in

investigation process and rather helped the authorities in successfully completing the

investigation process, despite which the CCB in its impugned order labeled the

Appellants to be unsupportive in the course of investigation which is somewhat unfair

and denies the Appellants their right to seek leniency completely.

5. It is also submitted that no official complaint2 had been received by the CCB about the

alleged acts and it has been exclusively stated in the moot problem3 that the CCB reached

on the sufficient indication based on the information given by the informants and

therefore, the Appellants herein moved to CCB before an official complaint was filed.

Even in cases where the CCI had initiated suo moto enquiry, reduction in penalty has

been given by the Commission who had approached it with clean hands after making true

and vital discloures along with aiding in the investigation process. As observed in the

case of In Re: Cartelization in respect of tenders floated by Indian Railways for supply of

Brushless DC Fans and other electrical items4 where the CCI granted a reduction of

penalty to an enterprise based on its application under Section 46 and had granted a

2
Section 19 of the Act
3
Para 8 of the Moot Proposition
4
Suo Moto Case No. 03 of 2014

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 reduction of 75% of penalty to OP 1 as well as to Mr Sandeep Goyal, who was the officer

responsible at OP 1 for its participation in the cartel despite the fact that the CCI had

sufficient material on record prior to such petition being filed. However, in the present

case, the Appellants moved much before the investigation commenced.

6. It is also pertinent to note that no opportunity was given by the commission to cross-

examine the representatives of the Slumber & Twirl-On who tried to shrug off the

allegation of their participation in the alleged anti-competitive acts and therefore, the case

of the Appellants has not been well presented. For instance, in the case of Cartelization in

respect of tenders floated by Indian Railways5 when the parties contended the denial of

cross-examination as the violation of principles on natural justice, the CCI after due

consideration of the issues raised, vide a reasoned order dated 14.08.2015 permitted

cross-examination of Shri Sandeep Goyal by OP 2 and OP 3.

7. It should also be taken into consideration that the DG commenced the formal

investigation in this regard only after receiving the documents submitted by the Appellant

herein6 and it was on the basis of the documents provided by the said Appellants that

aided and added ‘sufficient value’ to the investigation process. Therefore, the Appellants

herein were the first to approach CCB and should have not been placed at the same

footing as other parties who were equally involved in the said anti-competitive acts.

8. It is also submitted that it is false to suggest that the Appellants herein had ensured to

dominate the market structure as alleged by Respondent No. 2 because had that been the

case, the Respondent No. 2 had never been able to hold the largest market share

5
Ibid
6
Para 11 of the Moot Proposition

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 consecutively from the year 2013 to 2016 in the market of sale of Full Foam Mattresses

and Coir Based Mattresses.7

9. It is also pertinent to mention here that the Appellants herein are the only ones who have

acceded to the acts and such point should be taken into consideration. Also, the email that

was found by the DG was a part of legal advice sought by the family lawyer and action so

shall takenwas the only appropriate option in such situation. The filing of leniency

petition not only helped the Appellants but also the CCB, hence there was no ulterior

motive behind it. The rule in this respect is well settled that the first one to approach the

commission should be given maximum leniency8 and the same has not been complied

with in the present case. In the landmark case of In Re: Anticompetitive conduct in the

Dry-Cell Batteries Market in India the CCI noted that the leniency application filed by

Panasonic Japan made true and vital disclosures, which enabled the CCI to form a prima

facie opinion regarding the existence of the cartel. Further, the CCI noted that Panasonic

India provided crucial evidence regarding the modus operandi of the cartel and extended

full and continuous cooperation. Taking into account all these factors, the CCI granted a

100% reduction in penalty imposed on Panasonic India and its directors, officers and

employees.9 The same had been the case in Cartelisation in respect of zinc carbon dry

cell batteries market in India Vs. Eveready Industries India Ltd & Ors10where Panasonic,

by way of a leniency application disclosed the existence of a cartel between

manufacturers and suppliers of zinc carbon dry cell batteries and was provided 100%

leniency.

7
Appendix I, Point 2
8
Section 4(a), Lesser Penalty Regulations 2009.
9
Order in Suo Motu Case No. 2 of 2017 dated 30 August 2018
10
Cartelisation in respect of zinc carbon dry cell batteries market in India Vs. Eveready Industries India Ltd & Ors,
Suo Moto Case No. 2 of 2016.

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 10. Globecast was another enterprise which received a 100% reduction in penalty from the

CCI, in relation to bid rigging of tenders by sports broadcasters where the CCI provided

full immunity considering that Globecast approached the CCI before the prima facie

order and provided vital disclosures.11

B. PENALTY IMPOSED IN UNFAIR

1. It is most respectfully submitted that the penalty imposed by the CCB, that is 3% on the

total turnover for the year 2013-2016 brings out inequitable and absurd results that have

to be eschewed. To bring out equitable results the turn over from only the infringing

products should have been taken into consideration. Also, the market share is varied

among the parties and levying penalty on overall turnover would lead to absurdity. In the

landmark judgment12, the Supreme Court held that accepting the CCI’s interpretation of

the term “turnover” as “total turnover” in all situations would “bring about very

inequitable results”. Relying on various judgments stating that interpretation that brings

out inequitable or absurd results has to be eschewed, the Supreme Court held that the

interpretation extended by CCI does not commend acceptance. In this regard, the

Supreme Court took note of illustrations demonstrating that imposition of penalty on the

basis of “total turnover” in all cases would inequitably discriminate against enterprises

committing the same contravention depending on the manner in which their

product/business lines are structured. The SC therefore laid down Step-wise

Methodology for Penalty Imposition, that is, (1.) Determination of Relevant Turnover

& (2.)Determination of Appropriate Percentage of Penalty Based on Aggravating

11
In Re: Cartelisation by broadcasting service providers by rigging the bids submitted in response to the tenders
floated by Sports Broadcasters. Vs. Essel Shyam Communication Limited & Ors., Suo Moto Case No. 2 of 2013.
12
Excel Crop Care Limited v Competition Commission of India and Another (2017) 8 SCC 47

25 | P a g e
 and Mitigating Circumstances‘The broad principles that the punishment must be

proportioned to the offence is or ought to be of universal application’13

2. It is argued that the Hon’ble Supreme Court has confirmed that only the revenues

generated from the allegedly infringing product should be taken into account when

determining the amount of the fine.14

3. The CCB has arbitrarily exercised its discretionary power as it has not followed the

principals of natural justice under the General principle of law that have been explicitly

laid out. Likewise, application of this doctrine of proportionality applied emphasized by

referring to the following passage therein:“16...It is equally true that the penalty imposed

must be commensurate with the gravity of the misconduct and that any penalty

disproportionate to the gravity of the misconduct would be violative of Article 14 of the

Constitution...”15

4. The COMPAT has incorporated this principle in competition jurisprudence and observed

that the CCI must consider the mitigating circumstances and then only come to the final

conclusion regarding the quantum of punishment.16No doubt, the aim of the penal

provision is also to ensure that it acts as deterrent for others. At the same time, such a

position cannot be countenanced which would deviate from ‘teaching a lesson’ to the

violators and lead to the ‘death of the entity’ itself.

5. It is also emphasized that penalty under Section 27(b) is to be levied for contravention of

Section 3 in respect of any ‘agreement’ resulting in appreciable adverse effect on

competition. Therefore, as such, when penalty is being imposed in respect of any

13
ArvindMohan Sinha v. Amulya Kumar Biswas &Ors. AIR 1974 1818
14
In Re:Matrimony.com Limited Informant v Google India Private LimitedCase No. 07 of 2012
15
Bhagat Ram v. State of Himachal Pradesh &Ors.AIR 1983 SC 454
16
M/s. Gulf Oil Corporation Ltd. v. Competition Commission of India & Ors., [2013] Comp AT 122, ¶64

26 | P a g e
 infringing product, the turnover of that product would be relevant, i.e. only King-sized

Mattresses would be valid, not the sales of other products.

6. Even as per 2006 guidelines, it has been stated that the basic amount of the fine will be

related to a proportion of the value of sales, depending on the degree of gravity of the

infringement, multiplied by the number of years of infringement.17

7. In light of the principle of strict interpretation (relying on a Constitution Bench decision

in Abhiram Singh and Ors v C.D. Commachen (Dead) by L.Rs and Ors) the Supreme

Court held that, “even if two interpretations are possible, the one that leans in favour of

infringer has to be adopted” and that there was “no justification for including other

products of an enterprise for the purpose of imposing penalty” when the agreement

leading to contravention involves one product18

ARGUMENTS ON BEHALF OF SLUMBER

ISSUE 2: THAT THE APPELLANT NO. 4 HAS BEEN WRONGFULLY PENALIZED

BY CCB:

At the outset, it is humbly submitted before the Hon’ble Tribunal that the Appellant No. 4 has

not violated the provisions of Section 3 of The Competition Act, 2002. The CCB concluded that

Amar Napwell, Akbar Napwell, Antony Napwell, Twirl-On and Slumber were in violation of

Sections 3(1), 3(3)(a), and 3(3)(c), primarily based on the report submitted by the DG.

It is humbly submitted by the counsel for Appellant No. 4 herein that the facts and evidence

provided in the DG’s report are vague, inconsistent and insufficient to prove that Appellant No. 4

17
Section 19, Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No
1/2003
18
Excel Crop Care Limited v Competition Commission of India and Another (2017) 8 SCC 47

27 | P a g e
 was a party to the anti-competitive agreement between the Appellant No. 1, Appellant No. 2,

Appellant No. 3, and Respondent No. 2 for the following reasons:

A. THE MARKET STRUCTURE CAUSES PRICE PARALLELISM WHICH, IN ITSELF,

WOULD NOT AMOUNT TO AN ANTI-COMPETITIVE AGREEMENT

1. It is most respectfully submitted that the Appellant No. 4 is a manufacturer of mattresses in

Bohemia19 and supplies mattresses for hotel and household purposes and holds

approximately 5% of the market share. In such type of a market, minor shift in the prices can

bring a whole lot of change with respect to demand and supply. Major players in the market

were Appellant No. 1, Appellant No. 2, Appellant No. 3, and Respondent No. 2 holding

approximately 20% - 25% market share each. It can be easily inferred that these 4 players

were the one who had sufficient control over the market prices. If they ever increased or

decreased the price, the Appellant No. 4 had to make the relevant changes too in order to

meet the competition and gain profits. It is further submitted that it was an oligopolistic

market wherein there was a likelihood of each player being aware of actions of the other and

in such a situation price parallelism would be a common phenomenon. Thus, merely because

there was a price parallelism, it could not be construed as evidence of collusion. It is thus

submitted that Appellant No. 4 was just trying to match the prices of its competitors.

2. It is submitted that Appellant No. 4 was never a party to the alleged anti-competitive

agreement as it is also evident from the Table A, Appendix I. It is submitted that Appellant

No. 4 being the smallest player in the market could never increase the prices on its own (in

order to gain profits) as in such a case it would have suffered losses. Therefore, it kept a close

eye on its competitors and as soon as they increased their prices, it would increase its prices

too so that the profit is also increased and it doesn’t lose its market share too.
19
Para 4, Moot Proposition.

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3. It is submitted that merely because there was price parallelism, it could not have been the

reason to arrive at a conclusion that there was a collusive agreement or bid rigging. It is thus

submitted that when in a market the products are identical, the likelihood of price parallelism

is natural.

4. Each case must be considered on its own facts20 and there cannot be any jacket formula

which can be applied universally to all cases without variation21, and under the present

circumstances, parallel pricing shall not serve as sufficient evidence to prove violation of the

provisions of section 3. The entire purpose of DG’s investigation is to cover all necessary

facts and evidence in order to see as to whether there are any anti-competitive practices

adopted by the persons complained against22. But in the present case, neither the DG nor the

CCP considered the market structure and the prevailing economic conditions.

5. The European Court of Justice, in Dyestuffs, Imperial Chemical Industries v. Commission

of the European Communities23laid down the principle that evidence on which the contested

case is based should be considered, not in isolation, but as a whole. This has also been

followed by the Hon’ble Supreme Court of India while deciding competition law matters 24.

In Dyestuffs, the European Court held that parallel behavior does not, by itself, amount to a

concerted practice, though it may provide a strong evidence of such a practice. However,

before such an inference is drawn it must be seen that this parallel behavior has led to

conditions of competition which do not correspond to the normal conditions of the market,

having regard to the nature of the products, size and volume of the undertaking of the said

20
Dilip N. Shrof v. Joint CIT, (2007) 6 SCC 329; Commissioner of Income Tax, Bombay City I, Bombay vs. Jubilee
Mills Ltd., Bombay1963 48 ITR 9 SC.
21
CCI v. Steel Authority of India Ltd. and Anr, (2010) 10SCC 744.
22
Excel Crop Care Limited v Competition Commission of India &Anr, 2017 (6) SCALE 241.
23
48/69, (1972) ECR 619, ILEC 036 (CJEU 1972).
24
Rajasthan Cylinders vs Union of India 2018 SCC OnLine SC 1718.

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 market. Similarly, in Theatre Enterprises v. Paramount Films25, the US Supreme Court held

“But this Court has never held that proof of parallel business behavior conclusively

establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman

Act offence. Circumstantial evidence of consciously parallel behavior may have made heavy

inroads into the traditional judicial attitude toward conspiracy; but “conscious parallelism”

has not yet read conspiracy out of the Sherman Act entirely.” Ergo, this rule of evidence is

well established in foreign jurisdictions as well as in India viz. Rajasthan Cylinders v Union

of India26. The court also referred to US Supreme Court cases which held that parallel

pricing, in and of itself, is not an offence27 and that the evidence in such cases should rule out

the possibility that the parties were acting independently.

6. Another relevant fact which justifies similar pricing is that the cost of manufacture of the

different types of mattresses for each of the companies was marginally different. 28 It goes

without saying that this would further facilitate parallel pricing, sans any concerted action on

part of the Appellants, as each manufacturer would try to sell products at a similar price

which will balance out their desire to maximize their profits and their need to secure a larger

market share.

7. “In the first instance, it is to be found out that there existed an “agreement” which was

entered into by an enterprise or association of enterprises or person or association of

persons. Thereafter, it needs to be determined as to whether such an agreement is anti-

competitive agreement within the meaning of the Act.”29Thereby it is humbly submitted, that

25
346 U.S. 537 (1954).
26
2018 SCC OnLine SC 1718.
27
Monsanto Co. v. Spray-Rite Service Corp, 465 U.S. 752 (1984); Matsushita v. Zenith Radio Corp, 475 U.S.
574(1986); Bell Atlantic Corp v. Twombly, 550 U.S. 544(2007)
28
Table A, Appendix I.
29
CCI v. Coordination Committee of Artists and Technicians of WB Film and Television Industry, AIR 2017 SC
1449.

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 the evidence showing price parallelism simpliciter is not sufficient to prove that there existed

an anti-competitive agreement.

B. THE VAGUE NATURE OF DG’S REPORT AND INCREASE IN PRICES

1. It is submitted that the DG report does not, considering the facts of the case in totality,

directly or indirectly prove that there exists an anti-competitive agreement between the

Appellant No. 4 and rest of the players. One of the reasons for this is that the findings

mentioned in the DG report are vague and inconsistent. The counsel for the Appellant No. 4

shall now attempt to prove the aforementioned claim by looking at the different findings

mentioned in the DG report.

2. The first point for consideration here is the table of increased price history provided by the

DG30. In that regard, there two major issues that arise which, prima facie, may appear to be

signs of cartelization-

i) price parallelism, and

ii) increase in sale prices.

The former has already been dealt with previously, hence, we shall now discuss the issue of

increase in sale prices.

3. It is submitted to this Hon’ble Tribunal that the simultaneous increase in bid prices can be

due to multiple reasons, one of them being similar cost of manufacturing. This means that if

the cost of production increases for one manufacturer, it will increase for others as well. This

is evident from a perusal of the table of sale prices as well. The price increase has been a

gradual process which may also be due to price inflation and had there been an agreement or

30
Appendix I.

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 a cartel, there would have been a sudden increase in prices and a higher rate of increase in

sale prices.

4. The next point of consideration is the existence of proof of India Mattress Expo meeting

attended by all the Appellants and Respondent No. 2. These meetings have historically been

used as a platform for communication between members of cartels. But there is no such

presumption that every meeting facilitates cartelization. Therefore, there has to be evidence,

be it direct or circumstantial, to establish the role of such meetings in cartelization, if any.

This evidence includes, inter alia, minutes of the meetings, discussions of price, information

exchange, sharing of data, etc.31. In Re: Cartelization in respect of tenders floated by Indian

Railways for supply of Brushless DC Fans and other electrical items,32the CCI conducted a

qualitative analysis of documentary (bid documents), oral (recorded statements) and forensic

(call data records and e-mails) evidence. For instance, it compared prices shared through e-

mail and prices quoted and corroborated the recorded statements with the call data records.

No evidence of this sort was provided by the DG in its investigation report and despite no

such evidence, the CCP has imposed penalties.

5. There can be two forms of evidence, direct and circumstantial. The most common forms of

direct evidence are documents (in printed or electronic form) that identify an agreement and

the parties to it, and oral or written statements by co-operative cartel participants describing

the operation of the cartel. But in the present case, there is no direct evidence which

establishes the existence of a cartel or an anti-competitive agreement. Hence, the only other

form of evidence that the CCB could have based its decision was circumstantial evidence in

form of economic analysis. But Economic evidence especially can be ambiguous, consistent

31
Delhi Jal Board v Grasim Industries 2017 SCC OnLine CCI 48; Builders Association of India v Cement
Manufacturers Association and Ors,2016 SCC OnLine CCI 46
32
2017 SCC OnLine CCI 56

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 with either concerted or independent action. The better practice is to consider circumstantial

evidence as a whole, giving it cumulative effect, rather than on an item-by-item basis, and to

subject economic evidence to careful economic analysis33.

It is thus submitted that the CCB has cherry picked facts and evidence while reaching to its

conclusion as there is no proof of communication or exchange of information between the

Appellant No. 4 and rest of the players and the economic evidence considered by the CCB is

vague and incomplete, and ignorant of the prevalent nature of market.

C. FACTORS MENTIONED UNDER SECTION 19 DO NOT COME INTO PLAY

1. Without prejudice to the previous arguments, it is alternatively submitted that even if there is

an agreement between the Appellants, it does not have an anti-competitive effect in light of

the provisions of Section 19 of the Act. Section 19(3) deals with the factors which the

Commission shall have due regard to while determining whether an agreement has

appreciable adverse effect on competition. There are 3 positive factors and 3 negative factors

under Section 19(3) and it is our humble submission that the agreement, if any, between the

Appellants does not consist of any of those negative factors.

2. The first three factors mentioned under section 19 are the negative factors, none of which

exist in the present case. The first one is creation of barriers to new entrants in the market34.

It is submitted that this factor does not exist as there has been no information regarding any

new entrant into the market for whom a barrier may be created. This is evident from the

DG’s investigation itself that there are primarily 5 players in the market who sell quality

products.

33
OECD Policy Brief, June 2017, Page 1.
34
The Competition Act, 2002, S. 19(3)(a).

33 | P a g e
 3. The next factor is “driving existing competitors out of the market”35. Again, from a close

perusal of the factual matrix and the DG’s report, it is evident that there are primarily 5

players in the market, none of whom have been driven out of the market. The next factor is

“foreclosure of competition by hindering entry into the market”36. Entry into the market is

inherently hindered as only these 5 players procure quality products.

It is thus submitted that the Appellant No. 4 has not acted in any manner which may hinder

the entry of a new player into the market. In fact, if there is an agreement between the parties

to fix prices, etc., it shall be much easier for a new entrant to enter into the market, offer

lower prices and secure substantial share. This would, in turn, increase the competition in the

market instead of foreclosing it.

4. Section 19(3) is a mandatory provision and the Commission is bound to apply these factors

for arriving at a conclusion regarding AAEC. The parameters given in Section 19(3) are not

the cause' of AAEC but a result thereof. For example, if an "agreement" results into the

creation of barrier: or driving existing competitors or forecloses the competition and so on,

there has to be AAEC.37 But in the present case, none of the negative factors come into effect

and therefore it is humbly submitted, in conclusion, that there does not exist an anti-

competitive agreement between the Appellants under Section 3 or Section 19 of the Act.

D. THAT THE PENALTY IMPOSED ON SLUMBER IS NOT JUSTIFIED:

1. The CCI has chosen to impose a penalty of 3% of the turnover of the preceding four financial

years arising out of sale of tables, keeping in view the serious nature of the infringement and

in pursuance of deterrent on the part of the appellants. Since Appellant No. 4 never indulged

35
The Competition Act, 2002, S. 19(3)(b).
36
The Competition Act, 2002, S. 19(3)(c).
37
Shri Surinder Bhakoo v The HDFC Bank Ltd and Ors,2011 SCC OnLine CCI 8: [2011] CCI 10.

34 | P a g e
 in such prohibited practices, it is being penalized for no fault. It is evident from the above

arguments that Slumber was never a party to such forbidden acts. Moreover, it has been used

as a bait to catch the bigger fish.

2. It is submitted that when the dawn raid was conducted at Slumber’s office and various

documents, records and computers were seized, it showed no evidence of indulging in anti-

competitive agreement. Merely attending India Mattress Expo Meetings and increase in the

sale price thereafter does not lead to the conclusive conclusion of Slumber’s involvement in

the conspiracy hatched by the rest of the players.

ISSUE 3: THAT THE ACTS OF DG CONSTITUTE VIOLATION OF THE PRINCIPLES

OF NATURAL JUSTICE

A. DUE PROCEDURE IN WHICH DAWN RAID SHOULD HAVE BEEN CONDUCTED

IS NOT FOLLOWED

Due to the nature of Dawn Raids which are inherently invasive in nature, it has been made

mandatory for agencies to strictly comply with procedural safeguards enlisted under the

law.The essential aspects of the procedure that needs to be taken care of prior to the conduct

of any "Dawn Raid" are:

1. It has been incumbent upon the Director General under the Competition law to assist the

Competition Commission of India in complying with the rules and regulation under the

Anti-trust law. However, the Director General is required to be impartial while

conducting his investigation. The procedure adopted by the Director General and his

conclusions regarding the investigations have to be reasoned in order to deal with the

arguments of the accused organization.

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 2. The other safeguard under the prevailing law is that the Director General can commence

his investigation only after the conclusion of a "prima facie" case by the Competition

Commission of India. However, such conclusion should not affect the nature of

investigation by the Director General.

3. On receiving the order to carry out the investigation, the Director General is required to

prepare a questionnaire that has to be sent to the accused enterprise/organization. It is

pertinent to mention that the Director General is invested with the powers of that of a

civil court. Thus, as a matter of prudence, accused organization should furnish the correct

details in order to avoid any subsequent liability.

4. The expression "reason to believe" has a wider meaning than that of being satisfied. It

must be based on cogent evidence and reasons.Thus, the requirement of "reason to

believe" being a sine-qua-non is of wide ramifications. In Calcutta Discount Company

Limited v. Income Tax Officer38, the Hon'ble Supreme Court of India while dealing with

the term "reason to believe" observed,"The expression 'has reason to believe'...does not

mean a purely subjective satisfaction of the Income-tax Officer but predicates the

existence of reasons on which such belief has to be founded. That belief, therefore,

cannot be founded on mere suspicion and must be based on evidence and any question as

to the adequacy of such evidence is wholly immaterial at that stage."The Supreme Court

has held that the existence of reasons to believe is supposed to be the check, a limitation

upon the power39. Therefore, the very requirement that the DG needs to have "reason to

believe" before conducting a dawn raid is an inherent check upon any arbitrary action.

38
Calcutta Discount Company Limited v. Income Tax Officer, 1961 SCR (2) 241
39
Sri Krishna Private Ltd., v. I.T.O (1996) 9 SCC 534

36 | P a g e
 Though the jurisprudence vis-à-vis Director General's power is in its early stage, it can be

safely concluded that the DG has to remain fair and impartial and his powers to conduct

investigation is not unfettered.

B. THE DAWN RAID CONDUCTED WAS A FISHING EXPEDITION

1. It is most humbly submitted that the urgency with which the Dawn raid was conducted

makes it unlikely that it was done with the due effort to conduct an investigation and that

too at the premises of a company which holds the smallest share in the organized market

for manufacture and supply of mattresses in the consumer retail sector in Bohemia.

2. It is to be noted that the order of that the prime facie order was dispatched on June 8 2017

and the dawn raid was conducted the very next morning. Under such circumstances, it is

difficult to assume that the logistical and preparatory work was done in advance and such

raid was targeted towards Slumber as had that been the case the DG would have found

sufficient material from the office of Slumber.

3. It is also pertinent to mention here that, the CCB Chairman himself passed a comment

that “Slumber was the unfortunate bait which had been used to catch the bigger fish” and

so did happen. The moment the news of dawn raid spread in the market, the parties with

the dominating share of market who were in fact guilty of the said anti-competitive acts

approached CCB with leniency petitions. The dawn raid, therefore, so conducted was just

a way to induce the real culprits come out in open.

4. Therefore, the dawn raid so conducted was nothing more than ‘a fishing expedition’ and

the Appellant herein became the unjust target of it. Not only did such act violate the

principles of natural justice but also brought the Appellant under the ambit of a

conspiracy which it never was a part of. It has also been felt by various experts of the

37 | P a g e
 subject that ‘the commission might undertake fishing activities under the garb of

conducting "Dawn Raids"’40

5. Advocate General Wahl also delivered his opinion in the Deutsche Bahn case41 that the

European Commission is prevented from going on ‘fishing expeditions’ by stating

that “The Commission cannot search for evidence relating to potential breaches of the

EU competition rules other than those relating to the subject-matter of the investigation”.

That the said of act of DG is also violates the principle of protection of private sphere

against arbitrary or disproportionate public intervention.42

6. It is humbly submitted by that there has been a gross violation of the principles of natural

justice. Section 36(1) of the Act unequivocally provides that while the CCI has the power

to regulate its own procedure, it shall be guided by the principles of natural justice in the

exercise of its powers. Further, regulations that supplement the Act also lay down that the

CCI and the office of the DG must adhere to the principles of natural justice while

dealing with enforcement proceedings. The Supreme Court’s seminal judgment in

Competition Commission of India v. Steel Authority of India Limited 43 (“SAIL Case”),

forms the foundation of Indian jurisprudence in the field of competition law and due

process. The Supreme Court while examining the scheme of the Act, held that the CCI

being a quasi-judicial authority, is bound by the principles of natural justice.

Subsequently, the COMPAT has followed and subscribed to the Supreme Court’s

precedent in the SAIL Case and in a series of judgments, emphatically opined that the

CCI is obliged to adhere to the principles of natural justice.

40
Mihir Kamdar, Dawn raids amendment: Small step or giant leap?; India Business Law Journal; February 2013
41
Deutsche Bahn and others v European Commission (ECLI:EU:C:2014:2365)Case C-583/13P, Opinion of
Advocate General Wahl, 12 February 2015.
42
Article 7, Charter of Fundamental Rights of the European Union
43
(2010) 10 SCC 744, paragraph 86

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 7. The principles of due process form the bedrock of any justice dispensation arrangement

and are integral to any formal legal system. The Constitution of India, 1950

(“Constitution”) provides for the basics that all administrative agencies must follow while

exercising their decision-making powers and this includes adherence to the principles of

natural justice. While due process, as a concept, is derived from common law principles,

it is an indispensible component of India’s justice delivery system and by way of

precedents, the Honorable Supreme Court has established that it is imperative for judicial,

quasi-judicial and administrative authorities in India to follow due process in all their

proceedings. For instance, in the seminal case of Maneka Gandhi v. Union of India44 the

Supreme Court emphasized the importance of adoption of “fair, just and reasonable”

procedure by judicial and administrative authorities. The Competitions Act is no

exception to this rule.

44
AIR 1978 SC 597

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 PRAYER OF RELIEF

It is humbly submitted before the Hon’ble National Company Law Appellate Tribunal, Bohemia

that in the light of the facts stated, issues raised, arguments advanced and authorities cited, the

Counsel of the Appellants namely Amar Napwell, Akbar Napwell and Antony Napwell most

humbly and respectfully prays that this Hon’ble Tribunal may graciously be pleased to adjudge

and declare that:

1. Reduce the quantum of punishment by levying lesser penalty;

2. Grant 100% to all the three parties

Counsel of the Appellant namely Slumber humbly and respectfully prays that this Hon’ble

Tribunal may graciously be pleased to adjudge and declare that:

1. The order of CCB be reversed

Or pass any other order and make directions as the Hon’ble Tribunal may deem fit to meet the

interest of justice, equity and good conscience in the instant case.

And this for this act of kindness, appellant shall duty bound forever pray.

Respectfully submitted by: COUNSEL ON BEHALF OF THE APPELLANTS

Place: Bohemia

Date: 12th August, 2019

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