Bare Act

THE COMPETITION ACT, 2002 

(12 OF 2003) 

CONTENTS 

Sections Page 

CHAPTER I 

PRELIMINARY 

THE COMPETITION ACT, 20021 

No. 12 OF 2003 

[13th January, 2003.] 

An Act to provide, keeping in view of the economic development of the country, for  the establishment of a Commission to prevent practices having adverse effect  on competition, to promote and sustain competition in markets, to protect the inter ests of consumers and to ensure freedom of trade carried on by other participants in  

markets, in India, and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-third Year of the Republic of India as  follows:— 

CHAPTER I 

PRELIMINARY 

Short title, extent and commencement 

  1. (1) This Act may be called the Competition Act, 2002. 

(2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force on such date as the Central Government may,      by notification in the Official Gazette, appoint: 

 Provided that different dates may be appointed for different provisions of this  Act and any reference in any such provision to the commencement of this  Act shall be construed as a reference to the coming into force of that  provision. 

Definitions 

  1. In this Act, unless the context otherwise requires,— 

(a) “acquisition” means, directly or indirectly, acquiring or agreeing to  acquire— 

 (i) shares, voting rights or assets of any enterprise; or  (ii) control over management or control over assets of any enterprise; (b) “agreement” includes any arrangement or understanding or action in  concert,— 

 (i) whether or not, such arrangement, understanding or action is   formal or in writing; or 

 (ii) whether or not such arrangement, understanding or action is  intended to be enforceable by legal proceedings; 

2[(ba)“Appellate Tribunal” means the Competition Appellate Tribunal established under  sub-section (1) of Section 53A”] 

1 The following Act of Parliament received the assent of the President on the 13th January, 2003 2 Ins. by Competition (Amendment) Act, 2007

(1) 

(c) “cartel” includes an association of producers, sellers, distributors, traders  or service providers who, by agreement amongst themselves, limit, control  or attempt to control the production, distribution, sale or price of, or, trade  in goods or provision of services; 

(d) “Chairperson” means the Chairperson of the Commission appointed under  sub-section (1) of section 8; 

(e) “Commission” means the Competition Commission of India established   under sub-section(1) of section 7; 

(f) “consumer” means any person who— 

 (i) buys any goods for a consideration which has been paid or  promised or partly paid and partly promised, or under any system of  deferred payment and includes any user of such goods other than   the person who buys such goods for consideration paid or  promised or partly paid or partly promised, or under any system  of deferred payment when such use is made with the approval of  such person, whether such purchase of goods is for resale or for any   commercial purpose or for personal use; 

 (ii) hires or avails of any services for a consideration which has been  paid or promised or partly paid and partly promised, or under any       system of deferred payment and includes any beneficiary of such  services other than the person who hires or avails of the services  for consideration paid or promised, or partly paid and partly  promised, or under any system of deferred payment, when such       services are availed of with the approval of the first-mentioned  person whether such hiring or availing of services is for any  commercial purpose or for personal use; 

(g) “Director General” means the Director General appointed under  sub- section (1) of section 16 and includes any Additional, Joint, Deputy  or Assistant Directors General appointed under that section; 

(h) “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the produc tion, storage, supply, distribution, acquisition or control of articles or goods,  or the provision of services, of any kind, or in investment, or in the business  of acquiring, holding, underwriting or dealing with shares, debentures or  other securities of any other body corporate, either directly or through one  or more of its units or divisions or subsidiaries, whether such unit or  division or subsidiary is located at the same place where the enterprise is  located or at a different place or at different places, but does not include any  activity of the Government relatable to the sovereign functions of the Gov ernment including all activities carried on by the departments of the Central  Government dealing with atomic energy, currency, defence and space.

(2) 

Explanation.-For the purposes of this clause,—  

 (a) “activity” includes profession or occupation; 

 (b) “article” includes a new article and “service” includes a new   service; (c)“unit” or “division”, in relation to an enterprise, includes (i) a plant or factory established for the production, storage, supply,   distribution, acquisition or control of any article or goods;   (ii)  any branch or office established for the provision of any service;   (i)  “goods” means goods as defined in the Sale of Goods Act, 1930 (3 of     1930) and includes— 

 (A) products manufactured, processed or mined; (B)debentures,   stocks and shares after allotment; 

 (C) in relation to goods supplied, distributed or controlled in India,   goods imported into India; 

(j) “Member” means a Member of the Commission appointed under  sub- section (/) of section 8 and includes the Chairperson;   (k)  “notification” means a notification published in the Official Gazette; (l)     “person” includes— 

 (i) an individual; 

 (ii) a Hindu undivided family; (iii) a company; 

    (iv)  a firm; 

 (v) an association of persons or a body of individuals, whether   incorporated or not, in India or outside India; or 

 (vi) any corporation established by or under any Central, State or Provincial       Act or a Government company as defined in section 617 of       the Companies Act, 1956 (1 of 1956); 

 (vii) any body corporate incorporated by or under the laws of a  country outside India; 

 (viii) a co-operative society registered under any law relating to cooperative   societies; 

 (ix) a local authority; 

    (x)  every artificial juridical person, not falling within any of the preceding  sub-clauses; 

(m) “practice” includes any practice relating to the carrying on of any trade  by a person or an enterprise; 

(n) “prescribed” means prescribed by rules made under this Act; (o) “price”, in relation to the sale of any goods or to the performance of any  services, includes every valuable consideration, whether direct or indirect,   or deferred, and includes any consideration which in effect relates to the  sale of any goods or to the performance of any services although  ostensibly relating to any other matter or thing; 

  (p)   “public financial institution” means a public financial institution specified     under section 4A of the Companies Act, 1956 (1 of 1956) and includes a

(3) 

 State Financial, Industrial or Investment Corporation; 

(q) “regulations” means the regulations made by the Commission under  section 64; 

(r) “relevant market” means the market which may be determined by the  Commission with reference to the relevant product market or the relevant  geographic market or with reference to both the markets; 

(s) “relevant geographic market” means a market comprising the area  in which the conditions of competition for supply of goods or provision of  services or demand of goods or services are distinctly homogenous and   can be distinguished from the conditions prevailing in the neighbouring  areas; 

(t) “relevant product market” means a market comprising all those products  or services which are regarded as interchangeable or substitutable by the  consumer, by reason of characteristics of the products or services, their  prices and intended use; 

(u) “service” means service of any description which is made available to potential users and includes the provision of services in connection with  business of any industrial or commercial matters such as banking,  communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or  other energy, boarding, lodging, entertainment, amusement, construction,  repair, conveying of news or information and advertising; 

(v) “shares” means shares in the share capital of a company carrying   voting rights and includes— 

 (i) any security which entitles the holder to receive shares with  voting rights; 

 (ii) stock except where a distinction between stock and share is   expressed or implied; 

(w) “statutory authority” means any authority, board, corporation, council,  institute, university or any other body corporate, established by or under  any Central, State or Provincial Act for the purposes of regulating  production or supply of goods or provision of any services or markets  therefor or any matter connected therewith or incidental thereto; 

(x) “trade” means any trade, business, industry, profession or occupation  relating to the production, supply, distribution, storage or control of goods   and includes the provision of any services; 

(y) “turnover” includes value of sale of goods or services; 

  (z)   words and expressions used but not defined in this Act and defined in the     Companies Act, 1956 (1 of 1956) shall have the same meanings  respectively assigned to them in that Act.

(4) 

CHAPTER II 

PROHIBITION OF CERTAIN AGREEMENTS, ABUSE OF DOMINANT  POSITION AND REGULATION OF COMBINATIONS 

Prohibition of agreements 

Anti-competitive agreements 

  1. (1) No enterprise or association of enterprises or person or association of   persons shall enter into any agreement in respect of production, supply,   distribution, storage, acquisition or control of goods or provision of  services, which causes or is likely to cause an appreciable adverse effect on   competition within India. 

(2) Any agreement entered into in contravention of the provisions contained  in subsection (1) shall be void. 

(3) Any agreement entered into between enterprises or associations of  enterprises or persons or associations of persons or between any person and  enterprise or practice carried on, or decision taken by, any association  of enterprises or association of persons, including cartels, engaged in identi cal or similar trade of goods or provision of services, which— 

 (a) directly or indirectly determines purchase or sale prices;  (b) limits or controls production, supply, markets, technical development,  investment or provision of services; 

 (c) shares the market or source of production or provision of services by   way of allocation of geographical area of market, or type of goods or  services, or number of customers in the market or any other similar  way; 

 (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competi tion:  

Provided that nothing contained in this sub-section shall apply to any  agreement entered into by way of joint ventures if such agreement  increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. 

Explanation.—For the purposes of this sub-section, “bid rigging” means any agree ment, between enterprises or persons referred to in sub-section (3) engaged in  identical or similar production or trading of goods or provision of services, which  has the effect of eliminating or reducing competition for bids or adversely affecting  or manipulating the process for bidding 

(4) Any agreement amongst enterprises or persons at different stages or levels  of the production chain in different markets, in respect of production,  supply, distribution, storage, sale or price of, or trade in goods or provision  of services, including—

(5) 

(a) tie-in arrangement; 

(b) exclusive supply agreement; 

(c) exclusive distribution agreement;  

(d) refusal to deal; 

(e) resale price maintenance, 

shall be an agreement in contravention of sub-section (1) if such agreement causes  or is likely to cause an appreciable adverse effect on competition in India. 

Explanation.—For the purposes of this sub-section,— 

(a) “tie-in arrangement” includes any agreement requiring a purchaser of  goods, as a condition of such purchase, to purchase some other goods; 

(b) “exclusive supply agreement” includes any agreement restricting in any  manner the purchaser in the course of his trade from acquiring or   otherwise dealing in any goods other than those of the seller or any other   person; 

(c) “exclusive distribution agreement” includes any agreement to limit, restrict  or withhold the output or supply of any goods or allocate any area or  market for the disposal or sale of the goods; 

(d) “refusal to deal” includes any agreement which restricts, or is likely to   restrict, by any method the persons or classes of persons to whom goods  are sold or from whom goods are bought; 

(e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser  shall be the prices stipulated by the seller unless it is clearly stated that  prices lower than those prices may be charged. 

(5) Nothing contained in this section shall restrict— 

(i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his  rights which have been or may be conferred upon him under— 

    (a)   the Copyright Act, 1957 (14 of 1957); 

    (b)   the Patents Act, 1970 (39 of 1970); 

    (c)   the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the     Trade Marks Act, 1999 (47 of 1999); 

 (d) the Geographical Indications of Goods (Registration and Protection)       Act, 1999 (48 of 1999); (e) the Designs Act, 2000 (16 of 2000); 

 (f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37   of 2000); 

(ii) the right of any person to export goods from India to the extent to which  the agreement relates exclusively to the production, supply, distribution or  control of goods or provision of services for such export.

(6) 

Prohibition of abuse of dominant position 

Abuse of dominant position 

  1. 3[(1) No enterprise or group shall abuse its dominant position.] (2) There shall be an abuse of dominant position 4 [under sub-section (1),   if an enterprise or a group].—- 

(a) directly or indirectly, imposes unfair or discriminatory— 

 (i) condition in purchase or sale of goods or service; or  (ii) price in purchase or sale (including predatory price) of goods or   service. 

Explanation.— For the purposes of this clause, the unfair or discriminatory con dition in purchase or sale of goods or service referred to in sub-clause (i) and unfair  or discriminatory price in purchase or sale of goods (including predatory price) or  service referred to in sub-clause (ii) shall not include such discriminatory condition or  price which may be adopted to meet the competition; or 

(b) limits or restricts— 

 (i) production of goods or provision of services or market there for or     (ii)  technical or scientific development relating to goods or services to the  prejudice of consumers; or 

(c) indulges in practice or practices resulting in denial of market access   5[in any manner]; or 

(d) makes conclusion of contracts subject to acceptance by other parties of   supplementary obligations which, by their nature or according to   commercial usage, have no connection with the subject of such contracts; or 

(e) uses its dominant position in one relevant market to enter into, or protect,  other relevant market. 

Explanation.—For the purposes of this section, the expression— 

(a) “dominant position” means a position of strength, enjoyed by an enterprise,   in the relevant market, in India, which enables it to— 

 (i) operate independently of competitive forces prevailing in the  relevant market; or 

 (ii) affect its competitors or consumers or the relevant market in its favour. (b) “predatory price” means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of  production of the goods or provision of services, with a view to reduce com petition or eliminate the competitors. 

3 Subs. by Competition (Amendment) Act, 2007 for “No enterprise shall abuse its dominant  position.” 

4 Subs. by Competition (Amendment) Act, 2007 for “under sub-section (1), if an enterprise” 5 Ins. by Competition (Amendment) Act, 2007

(7) 

6[(c)“group” shall have the same meaning as assigned to it in clause (b) of the Explanation to section 5.] 

Regulation of combinations 

Combination 

  1. The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if— 

(a) any acquisition where— 

(i) the parties to the acquisition, being the acquirer and the enterprise, whose  control, shares, voting rights or assets have been acquired or are being  acquired jointly have,— 

 (A) either, in India, the assets of the value of more than rupees one  thousand crores or turnover more than rupees three thousand  crores; or  

 (B) 7[in India or outside India, in aggregate, the assets of the value of more       than five hundred million US dollars, including at least rupees five       hundred crores in India, or turnover more than fifteen hundred       million US dollars, including at least rupees fifteen hundred crores in  India; or] 

(ii) the group, to which the enterprise whose control, shares, assets or  voting rights have been acquired or are being acquired, would belong  after the acquisition, jointly have or would jointly have,— 

 (A) either in India, the assets of the value of more than rupees four thou  sand crores or turnover more than rupees twelve thousand crores; or 

 (B) 8[in India or outside India, in aggregate, the assets of the value of more  than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India; or] 

(b) acquiring of control by a person over an enterprise when such person has  already direct or indirect control over another enterprise engaged in  production, distribution or trading of a similar or identical or substitutable  goods or provision of a similar or identical or substitutable service, if— 

6 Ins. by Competition (Amendment) Act, 2007 

7 Subs. by Competition (Amendment) Act, 2007 for: 

  “ in India or outside India, in aggregate, the assets of the value of more than five hundred   million US dollars or turnover more than fifteen hundred million US dollars; or” 8 Subs. by Competition (Amendment) Act, 2007 for: 

  “ in India or outside India, in aggregate, the assets of the value of more than two billion US   dollars or turnover more than six billion US dollars; or”

(8) 

(i) the enterprise over which control has been acquired along with the  enterprise over which the acquirer already has direct or indirect control   jointly have,— 

 (A) either in India, the assets of the value of more than rupees one thousand  crores or turnover more than rupees three thousand crores;   or 

 (B) 9[in India or outside India, in aggregate, the assets of the value of        more than five hundred million US dollars, including at least rupees       five hundred crores in India, or turnover more than fifteen hundred       million US dollars, including at least rupees fifteen hundred crores  in India; or] 

(ii) the group, to which enterprise whose control has been acquired, or is being   acquired, would belong after the acquisition, jointly have or would jointly   have,— 

 (A) either in India, the assets of the value of more than rupees four thou  sand crores or turnover more than rupees twelve thousand crores or 

 (B) 10[in India or outside India, in aggregate, the assets of the value       of more than two billion US dollars, including at least rupees five       hundred crores in India, or turnover more than six billion US dollars,       including at least rupees fifteen hundred crores in India; or] 

(c) any merger or amalgamation in which— 

(i) the enterprise remaining after merger or the enterprise created as a result  of the amalgamation, as the case may be, have,— 

 (A) either in India, the assets of the value of more than rupees one  thousand crores or turnover more than rupees three thousand  crores; or 

 (B) 11[in India or outside India, in aggregate, the assets of the value of       more than five hundred million US dollars, including at least rupees       five hundred crores in India, or turnover more than fifteen hundred       million US dollars, including at least rupees fifteen hundred crores 

 in India; or] 

9 Subs. by Competition (Amendment) Act, 2007 for 

  “ in India or outside India, in aggregate, the assets of the value of more than five hundred   million US dollars or turnover more than fifteen hundred million US dollars; or” 10 Subs. by Competition (Amendment) Act, 2007 for 

  “ in India or outside India, in aggregate, the assets of the value of more than two billion US   dollars or turnover more than six billion US dollars; or” 

11 Subs. by Competition (Amendment) Act, 2007 for 

  “ in India or outside India, in aggregate, the assets of the value of more than five hundred   million US dollars or turnover more than fifteen hundred million US dollars; or”

(9) 

(ii) the group, to which the enterprise remaining after the merger or the enter  prise created as a result of the amalgamation, would belong after the  merger or the amalgamation, as the case may be, have or would have,— 

 (A) either in India, the assets of the value of more than rupees four-thou  sand crores or turnover more than rupees twelve thousand  crores; or 

 (B) 12 [in India or outside India, in aggregate, the assets of the value of        more than two billion US dollars, including at least rupees five       hundred crores in India, or turnover more than six billion US dollars,  including at least rupees Fifteen Hundred Crores in India  

Explanation.— For the purposes of this section,— 

(a) “control” includes controlling the affairs or management by— 

 (i) one or more enterprises, either jointly or singly, over another  enterprise or group; 

 (ii) one or more groups, either jointly or singly, over another group  or enterprise; 

(b) “group” means two or more enterprises which, directly or indirectly, are  in a position to — 

 (i) exercise twenty-six per cent or more of the voting rights in the  other enterprise; or 

    (ii)  appoint more than fifty per cent of the members of the board of  directors in the other enterprise; or 

 (iii) control the management or affairs of the other enterprise; 

(c) the value of assets shall be determined by taking the book value of the  assets as shown, in the audited books of account of the enterprise, in the  financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value  of assets shall include the brand value, value of goodwill, or value  of copyright, patent, permitted use, collective mark, registered propri etor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout- design or similar other  commercial rights, if any, referred to in sub-section (5) of section 3. 

Regulation of combinations 

  1. (1) No person or enterprise shall enter into a combination which causes or is  likely to cause an appreciable adverse effect on competition within the   relevant market in India and such a combination shall be void. 

12 Subs. by Competition (Amendment) Act, 2007 for: 

  “in India or outside India, the assets of the value of more than two billion US dollars or turn    over more than six billion US dollars

(10) 

(2) Subject to the provisions contained in sub-section (1), any person or   enterprise, who or which proposes to enter into a combination, 13 [shall]     give notice to the Commission, in the form as may be specified, and  the fee which may be determined, by regulations, disclosing the details  of the proposed combination, within 14 [thirty days] of— 

 (a) approval of the proposal relating to merger or amalgamation, referred  to in clause (c) of section 5, by the board of directors of the  enterprises concerned with such merger or amalgamation, as the case   may be; 

 (b) execution of any agreement or other document for acquisition referred   to in clause (a) of section 5 or acquiring of control referred to in clause   (b) of that section. 

15[(2A)No combination shall come into effect until two hundred and ten days have  passed from the day on which the notice has been given to the Commission  under sub-section(2) or the Commission has passed orders under section 31, which ever is earlier.] 

(3) The Commission shall, after receipt of notice under sub-section (2), deal  with such notice in accordance with the provisions contained in sections      29, 30 and 31. 

(4) The provisions of this section shall not apply to share subscription or     financing facility or any acquisition, by a public financial institution,  foreign institutional investor, bank or venture capital fund, pursuant to  any covenant of a loan agreement or investment agreement. 

  (5)   The public financial institution, foreign institutional investor, bank or  venture capital fund, referred to in sub-section (4), shall, within seven days     from the date of the acquisition, file, in the form as may be specified by  regulations, with the Commission the details of the acquisition including  the details of control, the circumstances for exercise of such control  and the consequences of default arising out of such loan agreement or  investment agreement, as the case may be. 

Explanation.—For the purposes of this section, the expression— 

(a) “foreign institutional investor” has the same meaning as assigned to it  in clause (a) of the Explanation to section 115AD of the Income-tax Act,     1961(43  of 1961); 

(b) “venture capital fund” has the same meaning as assigned to it in clause  (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax      Act, 1961(43 of 1961);. 

13 Subs. by Competition (Amendment) Act, 2007 for “may, at his or its option” 14 Subs. by Competition (Amendment) Act, 2007 for “seven days” 

15 Ins. by Competition (Amendment) Act, 2007

(11) 

CHAPTER III  

COMPETITION COMMISSION OF INDIA 

Establishment of Commission 

  1. (1) With effect from such date as the Central Government may, by     notification, appoint, there shall be established, for the purposes of this Act,  a Commission to be called the “Competition Commission of India”. 

(2) The Commission shall be a body corporate by the name aforesaid  having perpetual succession and a common seal with power, subject to  the provisions of this Act, to acquire, hold and dispose of property, both  movable and immovable, and to contract and shall, by the said name, sue  

 or be sued. 

  (3)   The head office of the Commission shall be at such place as the   Central Government may decide from time to time. 

  (4)   The Commission may establish offices at other places in India. Composition of Commission 

16[8.(1) The Commission shall consist of a Chairperson and not less than two and  not more than six other Members to be appointed by the Central  Government. 

(2) The Chairperson and every other Member shall be a person of ability,  integrity and standing and who has special knowledge of, and such     professional experience of not less than fifteen years in, international     trade, economics, business, commerce, law, finance, accountancy,  management, industry, public affairs or competition matters, including  

 competition law and policy, which in the opinion of the Central Government,   may be useful to the Commission. 

(3) The Chairperson and other Members shall be whole-time Members.] 

16 Subs. by Competition (Amendment) Act, 2007 for ; 

(1) The Commission shall consist of a Chairperson and not less than two and not more  than ten other Members to be appointed by the Central Government:  Provided that the Central Government shall appoint the Chairperson and a Member     during the first year of the establishment of the Commission. 

(2) The Chairperson and every other Member shall be a person of ability, integrity and     standing and who has been, or is qualified to be a judge of a High Court, or, has special     knowledge of, and professional experience of not less than fifteen years in international     trade, economics, business, commerce, law, finance, accountancy, management,  industry, public affairs, administration or in any other matter which, in the opinion of the  

 Central Government may be useful to the Commission. 

(3) The Chairperson and other Members shall be whole-time Members.”

(12) 

17[Selection Committee for Chairperson and Members of Commission] 

18[9. (1)  The Chairperson and other Members of the Commission shall be  appointed by the Central Government from a panel of names  recommended by a Selection Committee consisting of – 

  1. a) the Chief Justice of India or his nominee – Chairperson; b) the Secretary in the Ministry of Corporate Affairs – Member; c) the Secretary in the Ministry of Law and Justice – Member; 
  2. d) two experts of repute who have special knowledge of, and professional ex  perience in international trade, economics, business, commerce, law,      finance, accountancy, management, industry, public affairs or competition   matters including – Members. 

 competition law and policy  

(2) The term of the Selection Committee and the manner of selection of  panel of names shall be such as may be prescribed.] 

Term of office of Chairperson and other Members 

  1. (1)   The Chairperson and every other Member shall hold office as such for     a term of five years from the date on which he enters upon his office and  shall be eligible for re-appointment: 

 19[Provided that the Chairperson or other Members shall not hold office as     such after he has attained the age of sixty-five years] 

(2) A vacancy caused by the resignation or removal of the Chairperson or any  other Member under section 11 or by death or otherwise shall     be filled by fresh appointment in accordance with the provisions of sections     8 and 9. 

(3) The Chairperson and every other Member shall, before entering upon     his office, make and subscribe to an oath of office and of secrecy in such  form, manner and before such authority, as may be prescribed. 

  (4)   In the event of the occurrence of a vacancy in the office of the  Chairperson by reason of his death, resignation or otherwise, the senior-  most Member shall act as the Chairperson, until the date on which a  new Chairperson, appointed in accordance with the provisions of this Act to      fill such vacancy, enters upon his office. 

17 Subs. by Competition (Amendment) Act, 2007 for “Selection of Chairperson and other  Members” 

18 Subs. by Competition (Amendment) Act, 2007 for: 

“The Chairperson and other Members shall be selected in the manner as may be prescribed.” 19 Subs. by Competition (Amendment) Act, 2007 for: 

  “Provided that no Chairperson or other Member shall hold office as such after he has attained- (a) in the case of the Chairperson, the age of sixty-seven years; 

  (b)   in the case of any other Member, the age of sixty-five years.”

(13) 

(5) When the Chairperson is unable to discharge his functions owing to  absence, illness or any other cause, the senior-most Member shall   discharge the functions of the Chairperson until the date on which the  Chairperson resumes the charge of his functions. 

Resignation, removal and suspension of Chairperson and other members 

  1. (1) The Chairperson or any other Member may, by notice in writing under     his hand addressed to the Central Government, resign his office: 

 Provided that the Chairperson or a Member shall, unless he is permitted     by the Central Government to relinquish his office sooner, continue to hold     office until the expiry of three months from the date of receipt of such  notice or until a person duly appointed as his successor enters upon his  

    office or until the expiry of his term of office, whichever is the earliest. 

(2) Notwithstanding anything contained in sub-section (1), the Central  Government may, by order, remove the Chairperson or any other Member     from his office if such Chairperson or Member, as the case may be,— 

 (a) is, or at any time has been, adjudged as an insolvent; or 

    (b)   has engaged at any time, during his term of office, in any  paid employment; or 

 (c) has been convicted of an offence which, in the opinion of the   Central Government, involves moral turpitude; or 

    (d)   has acquired such financial or other interest as is likely to  affect prejudicially his functions as a Member; or 

 (e) has so abused his position as to render his continuance in        office prejudicial to the public interest; or 

 (f) has become physically or mentally incapable of acting as a Member. (3) Notwithstanding anything contained in sub-section (2), no Member shall 

be removed from his office on the ground specified in clause (d) or clause (e) of that subsection unless the Supreme Court, on a reference being made  to it in this behalf by the Central Government, has, on an inquiry, held by  it in accordance with such procedure as may be prescribed in this behalf  by the Supreme Court, reported that the Member, ought on such ground or  grounds to be removed. 

Restriction on employment of Chairperson and other Members in certain cases 

  1. The Chairperson and other Members shall not, for a period of 20 [two   years] from the date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Commission under this Act: 

20 Subs. by Competition (Amendment) Act, 2007 for “one year”

(14) 

Provided that nothing contained in this section shall apply to any employment under  the Central Government or a State Government or local authority or in any statutory  authority or any corporation established by or under any Central, State or Provincial  Act or a Government company as defined in section 617 of the Companies Act, 

1956 (1 of 1956). 

21[Administrative powers of Chairperson] 

22[13. The Chairperson shall have the powers of general superintendence,  direction and control in respect of all administrative matters of the   Commission: 

 Provided that the Chairperson may delegate such of his powers relating       to administrative matters of the Commission, as he may think fit, to any       other Member or officer of the Commission.”] 

Salary and allowances and other terms and conditions of service of Chairperson  and other Members 

  1. (1) The salary, and the other terms and conditions of service, of the  Chairperson and other Members, including travelling expenses, house  rent allowance and conveyance facilities, sumptuary allowance and  medical facilities shall be such as may be prescribed. 

(2) The salary, allowances and other terms and conditions of service   of the Chairperson or a Member shall not be varied to his dis  advantage after appointment. 

Vacancy, etc. not to invalidate proceedings of Commission 

  1. No act or proceeding of the Commission shall be invalid merely by reason of—  (a) any vacancy in, or any defect in the constitution of, the Commission; or 

(b) any defect in the appointment of a person acting as a Chairperson or as a  Member; or 

(c) any irregularity in the procedure of the Commission not affecting the   merits of the case. 

21 Subs. by Competition (Amendment) Act, 2007 for “Financial and administrative powers of Member Administration” 

22 Subs. by Competition (Amendment) Act, 2007 for: 

“ The Central Government shall designate any Member as Member Administration who shall   exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government: 

  Provided that the Member Administration shall have authority to delegate such of his financial   and administrative powers as he may think fit to any other officer of the Commission subject to   the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.”

(15) 

Appointment of Director General, etc. 

  1. 23 [(1)  The Central Government may, by notification, appoint a Director General  for the purposes of assisting the Commission in conducting inquiry   into contravention of any of the provisions of this Act and for performing  such other functions as are, or may be, provided by or under this Act. 

(1A) The number of other Additional, Joint, Deputy or Assistant Directors General or such officers or other employees in the office of Director General and the manner of appointment of such Additional, Joint, Deputy or Assistant Directors General or such officers or other employees shall be such as may be prescribed.”] 

(2) Every Additional, Joint, Deputy and Assistant Directors General or 24[such officers or other employees,] shall exercise his powers, and  discharge his functions, subject to the general control, supervision and  direction of the Director General. 

(3) The salary, allowances and other terms and conditions of service of the Director General and Additional, Joint, Deputy and Assistant Directors General or, 25 [such officers or other employees,] shall be such as may be prescribed. 

(4) The Director General and Additional, Joint, Deputy and Assistant Directors General or 26[such officers or other employees,] shall be appointed from amongst persons of integrity and outstanding ability and who have experience in investigation, and knowledge of  

accountancy, management, business, public administration, international trade, law or economics and such other qualifications as may be prescribed. 

23 Subs. by Competition (Amendment) Act, 2007 for : 

  “ The Central Government may, by notification, appoint a Director General and as many Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or   officers, as it may think fit, for the purposes of assisting the Commission in conducting inquiry 

into contravention of any of the provisions of this Act and for the conduct of cases before the  Commission and for performing such other functions as are, or may be, provided by or under  this Act” 

24 Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants and    officers,” 

25 Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants and    officers,” 

26 Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants and   officers,”

(16) 

27[Appointment of Secretary, experts, professionals and officers and other  employees of Commission] 

28[17.  (1)  The Commission may appoint a Secretary and such officers         and other employees as it considers necessary for the efficient  performance of its functions under this Act. 

 (2) The salaries and allowances payable to and other terms and          conditions of service of the Secretary and officers and other         employees of the Commission and the number of such officers and  other employees shall be such as may be prescribed. 

 (3) The Commission may engage, in accordance with the procedure         specified by regulations, such number of experts and professionals of  integrity and outstanding ability, who have special knowledge of,  and experience in, economics, law, business or such other disciplines  related to competition, as it deems necessary to assist the Commission  in the discharge of its functions under this Act.] 

27   Subs. by Competition (Amendment) Act, 2007 for “Registrar and officers and other employees of Commission” 

28 Subs. by Competition (Amendment) Act, 2007 for: 

   (1)  The Commission may appoint a Registrar and such officers and other employees as it       considers necessary for the efficient performance of its functions under this Act (2) The salaries and allowances payable to and other terms and conditions of service of the       Registrar and officers and other employees of 

      the Commission and the number of such officers and other employees shall be such as  may be prescribed.”

(17) 

CHAPTER IV 

DUTIES, POWERS AND FUNCTIONS OF COMMISSION 

Duties of Commission 

  1. Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: 

Provided 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 the prior approval of the Central Government, with any agency of any foreign country. 

Inquiry into certain agreements and dominant position of enterprise 

  1. (1) The Commission may inquire into any alleged contravention of the   provisions contained in subsection (1) of section 3 or sub-section (1) of   section 4 either on its own motion or on— 

 (a) 29[receipt of any information, in such manner and] accompanied by such  fee as may be determined by regulations, from any person, consumer or  their association or trade association; or 

 (b) a reference made to it by the Central Government or a State  Government or a statutory authority. 

(2) Without prejudice to the provisions contained in sub-section (1), the powers  and functions of the Commission shall include the powers and functions      specified in sub-sections (3) to (7). 

(3) The Commission shall, while determining whether an agreement has  an appreciable adverse effect on competition under section 3, have due  regard to all or any of the following factors, namely:— 

 (a) creation of barriers to new entrants in the market;  

 (b) driving existing competitors out of the market; 

 (c) foreclosure of competition by hindering entry into the market;      (d)  accrual of benefits to consumers; 

 (e) improvements in production or distribution of goods or provision  of services; 

    (f)  promotion of technical, scientific and economic development by  means of production or distribution of goods or provision of services. 

29 Subs. by Competition (Amendment) Act, 2007 for “receipt of a complaint,”

(18) 

(4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of  the following factors, namely:— 

(a) market share of the enterprise; 

  (b)     size and resources of the enterprise; 

  (c)     size and importance of the competitors; 

(d) economic power of the enterprise including commercial advantages over  competitors; 

(e) vertical integration of the enterprises or sale or service network of such  enterprises; 

(f) dependence of consumers on the enterprise; 

(g) monopoly or dominant position whether acquired as a result of any  statute or by virtue of being a Government company or a public  sector undertaking or otherwise; 

  (h)     entry barriers including barriers such as regulatory barriers, financial  risk, high capital cost of entry, marketing entry barriers, technical entry  barriers, economies of scale, high cost of substitutable goods or   service for consumers; 

(i) countervailing buying power; 

  (j)    market structure and size of market; (k)  social obligations and social  costs; 

(I) relative advantage,by way of the contribution to the economic  development, by the enterprise enjoying a dominant position having or  likely to have an appreciable adverse effect on competition; 

(m) any other factor which the Commission may consider relevant for  the inquiry. 

(5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant  geographic market’’ and “relevant product market”. 

(6) The Commission shall, while determining the “relevant geographic  market”, have due regard to all or any of the following factors, namely:— 

(a) regulatory trade barriers; 

  (b)   local specification requirements; (c) national procurement policies; (d) adequate distribution facilities; (e) transport costs; 

(f) language; 

(g) consumer preferences; 

(h) need for secure or regular supplies or rapid after-sales services.

(19) 

(7) The Commission shall, while determining the “relevant product market”,   have due regard to all or any of the following factors, namely:— 

 (a) physical characteristics or end-use of goods;  

 (b) price of goods or service 

 (c) consumer preferences; 

 (d) exclusion of in-house production;  

 (e) existence of specialised producers;  

     (f)  classification of industrial products. 

Inquiry into combination by Commission 

  1. (1) The Commission may, upon its own knowledge or information  relating to acquisition referred to in clause (a) of section 5 or acquiring of   control referred to in clause (b) of section 5 or merger or amalgamation  referred to in clause (c) of that section, inquire into whether such a  combination has caused or is likely to cause an appreciable adverse effect  on competition in India: 

 Provided that the Commission shall not initiate any inquiry under this  subsection after the expiry of one year from the date on which such  combination has taken effect. 

(2) The Commission shall, on receipt of a notice under sub-section (2) of  section 6 30[***], inquire whether a combination referred to in that notice or  reference has caused or is likely to cause an appreciable adverse effect on  competition in India. 

(3) Notwithstanding anything contained in section 5, the Central Government 

shall, on the expiry of a period of two years from the date of commence ment of this Act and thereafter every two years, in consultation with  the Commission, by notification, enhance or reduce, on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of turnover, for the purposes  of that section. 

(4) For the purposes of determining whether a combination would have the  effect of or is likely to have an appreciable adverse effect on competition  in the relevant market, the Commission shall have due regard to all  or any of the following factors, namely:— 

 (a) actual and potential level of competition through imports in the market  (b) extent of barriers to entry into the market; 

 (c) level of combination in the market; 

30 The words “or upon receipt of a reference under sub-section (1) of section 21” omitted by Competi tion (Amendment) Act, 2007

(20) 

 (d) degree of countervailing power in the market; 

 (e) likelihood that the combination would result in the parties to          the combination being able to significantly and sustainably increase          prices or profit margins; 

 (f) extent of effective competition likely to sustain in a market; 

 (g) extent to which substitutes are available or arc likely to be available in  the market; 

 (h) market share, in the relevant market, of the persons or enterprise in  a combination, individually and as a combination; 

 (i) likelihood that the combination would result in the removal of a   vigorous and effective competitor or competitors in the market; 

 (j) nature and extent of vertical integration in the market; (k) possibility  of a failing business; 

 (I) nature and extent of innovation; 

 (m) relative advantage, by way of the contribution to the economic  development, by any combination having or likely to have      (n)   whether the benefits of the combination outweigh the adverse impact   of the combination, if any. 

Reference by statutory authority 

  1. (1) Where in the course of a proceeding before any statutory authority an  issue is raised by any party that any decision which such statutory authority  has taken or proposes to take is or would be, contrary to any of the  provisions of this Act, then such statutory authority may make a reference   in respect of such issue to the Commission: 

 31[Provided that any statutory authority, may, suo motu, make such a   reference to the Commission.] 

 32[(2)  On receipt of a reference under sub-section (1), the Commission shall  give its opinion, within sixty days of receipt of such reference, to such  statutory authority which shall consider the opinion of the Commission      and thereafter, give its findings recording reasons therefor on the issues  referred to in the said opinion.] 

31 Ins. by Competition (Amendment) Act, 2007 

32 Subs. by Competition (Amendment) Act, 2007 for: 

  “ On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings, give its opinion to such statutory authority which shall thereafter   pass such order on the issues referred to in that sub-section as it deems fit: Provided that the Commission shall give its opinion under this section within sixty days of receipt of such reference.”

(21) 

33[Reference by Commission] 

34[21A. (1) Where in the course of a proceeding before the Commission an  issue is raised by any party that any decision which, the Commission  has taken during such proceeding or proposes to take, is or would be  contrary to any provision of this Act whose implementation is  entrusted to a statutory authority, then the Commission may make  a reference in respect of such issue to the statutory authority: 

 Provided that the Commission, may, suomotu, make such a   reference to the statutory authority. 

     (2)   On receipt of a reference under sub-section (1), the statutory authority   shall give its opinion, within sixty days of receipt of such reference,   to the Commission which shall consider the opinion of the statutory         authority, and thereafter give its findings recording reasons there for on  the issues referred to in the said opinion.] 

35 [Meetings of Commission] 

36[22. (1) The Commission shall meet at such times and places, and shall   observe such rules and procedure in regard to the transaction of   business at its meetings as may be provided by regulations.  (2) The Chairperson, if for any reason, is unable to attend a  meeting of the Commission, the senior-most Member present at the  meeting, shall preside at the meeting. 

 (3) All questions which come up before any meeting of the Commission  shall be decided by a majority of the Members present and voting, and   in the event of an equality of votes, the Chairperson or in his absence,  the Member presiding, shall have a second or/casting vote: 

 Provided that the quorum for such meeting shall be three Members.] 

33 Ins. by Competition (Amendment) Act, 2007 

34 Ins. by Competition (Amendment) Act, 2007 

35 Subs. by Competition (Amendment) Act, 2007 for “Benches of Commission” 36 Subs. by Competition (Amendment) Act, 2007 for: 

(1) The jurisdiction, power and authority of the Commission may be exercised by Benches   thereof. 

(2) The Benches shall be constituted by the Chairperson and each Bench shall consist of  not less than two Members.  

(3) Every Bench shall consist of at least one Judicial Member. 

 Explanation.—For the purposes of this sub-section, “Judicial Member” means a Member     who is, or has been, or is qualified to be, a Judge of a High Court. 

(4) The Bench over which the Chairperson presides shall be the Principal Bench and the  otherBenches shall be known as the Additional Benches. 

(5) There shall be constituted by the Chairperson one or more Benches to be called the  Mergers Bench or Mergers Benches, as the case may be, exclusively to deal with matters   referred to in sections 5 and 6. 

(6) The places at which the Principal Bench, other Additional Bench or Mergers Bench shall     ordinarily sit, shall be such as the Central Government may, by notification, specify.”

(22) 

  1. 3723.   [Omitted by the Competition (Amendment) Act, 2007] 
  2. 3824.   [Omitted by the Competition (Amendment) Act, 2007] 
  3. 3925.   [Omitted by the Competition (Amendment) Act, 2007]

37 Prior to omission, Section 23 read as under:- 

“ Distribution of business of Commission amongst Benches 

(1) Where any Benches are constituted, the Chairperson may, from time to time, by order,  make provisions as to the distribution of the business of the Commission amongst the  Benches and specify the matters, which may be dealt with by each Bench. 

(2) If any question arises as to whether any matter falls within the purview of the business      allocated to a Bench, the decision of the Chairperson thereon shall be final. (3) The Chairperson may 

 (i) transfer a Member from one Bench to another Bench , or 

    (ii)  authorize the Members of one Bench to discharge also the functions of the Members  of other Bench: 

Provided that the Chairperson shall transfer, with the prior approval of the Central Government, a  Member from one Bench situated in one city to another Bench situated in another city. (4) The Chairperson may, for the purpose of securing that any case or matter which, having  regard to the nature of the questions involved, requires or is required in his opinion or  under the rules made by the Central Government in this behalf, to be decided by a Bench  composed of more than two Members issue such general or special orders as he may      deem fit.” 

38 Prior to omission Section 24 read as under: 

“ Procedure for deciding a case where Members of a Bench differ in opinion If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the 

  majority of the Members who have heard the case, including those who first heard it.” 39 Prior to omission, Section 25 read as under: “ Jurisdiction of Bench 

An inquiry shall be initiated or a complaint be instituted or a reference be made under this Act before a Bench within the local limits of whose jurisdiction— 

(a) the respondent, or each of the respondents, where there are more than one, at the time  of the initiation of inquiry or institution of the complaint or making of reference, as the case  may be, actually and voluntarily resides, or carries on business, or personally works for  gain; or 

(b) any of the respondents, where there are more than one, at the time of the initiation of the  inquiry or institution of complaint or making of reference, as the case may be, actually and  voluntarily resides or carries on business or personally works for gain provided that in  such case either the leave of the Bench is given, or the respondents who do not reside, or   carry on business, or personally work for gain, as aforesaid, acquiesce in such institution;  or 

(c) the cause of action, wholly or in part, arises. 

Explanation.—A respondent, being a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (1) of section 2, shall be deemed to carry on   business at its sole or principal place of business in India or at its registered office in India or   where it has also a subordinate office at such place.” 

(23) 

40[Procedure for inquiry under section 19] 

41[26. (1)  On receipt of a reference from the Central Government or a State  Government or a statutory authority or on its own knowledge or        information received under section 19, if the Commission is of the  opinion that there exists a prima facie case, it shall direct the Director  General to cause an investigation to be made into the matter: 

 Provided that if the subject matter of an information received is, in the  opinion of the Commission, substantially the same as or has been covered  by any previous information received, then the new information may be  clubbed with the previous information. 

 (2) Where on receipt of a reference from the Central Government or  a State Government or a statutory authority or information received under        section 19, 

40 Subs. by Competition (Amendment) Act, 2007 for “Procedure for inquiry on complaints under    section 19” 

41 Subs. by Competition (Amendment) Act, 2007 for: 

  “ Procedure for inquiry on complaints under Section 19 

  (1)  On receipt of a complaint or a reference from the Central Government or a State  Government or a statutory authority or on its own knowledge or information, under section     19, if the Commission is of the opinion that there exists a prima facie case, it shall direct  the Director General to cause an investigation to be made into the matter. 

(2) The Director General shall, on receipt of direction under sub-section (1), submit a report     on his findings with in such period as may be specified by the Commission.   (3)  Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the  Commission is of the opinion that there exists no prima facie case, it shall dismiss the      complaint and may pass such orders as it may deems fit, including imposition of costs, if  necessary. 

(4) The Commission shall forward a copy of the report referred to in sub-section (2) to the  parties concerned or to the Central Government or the State Government or the statutory  authority, as the case may be. 

(5) If the report of the Director General relates on a complaint and such report recommends  that there is no contravention of any of the provisions of this Act, the complainant shall be     given an opportunity to rebut the findings of the Director General. 

(6) If, after hearing the complainant, the Commission agrees with the recommendation of the  Director General, it shall dismiss the complaint. 

(7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is  called for, it shall direct the complainant to proceed with the complaint. (8) If the report of the Director General relates on a reference made under sub-section (/)  and such report recommends that there is no contravention of the provisions of this  Act, the Commission shall invite comments of the Central Government or the State  Government or the statutory authority, as the case may be, on such report and on receipt  of such comments, the Commission shall return the reference if there is no prima facie   case or proceed with the reference as a complaint if there is a prima facie case.   (9)   If the report of the Director General referred to in sub-section (2) recommends that there  is contravention of any of the provisions of this Act, and the Commission is of the opinion  that further inquiry is called for, it shall inquire into such contravention in accordance with  the provisions of this Act.”

(24) 

 the Commission is of the opinion that there exists no prima facie case, it        shall close the matter forthwith and pass such orders as it deems fit and  send a copy of its order to the Central Government or the State  Government or the statutory authority or the parties concerned, as the  

 case may be. 

 (3) The Director General shall, on receipt of direction under sub-section (1),       submit a report on his findings within such period as may be specified by  the Commission. 

 (4) The Commission may forward a copy of the report referred to in sub   section(3) to the parties concerned: 

Provided that in case the investigation is caused to be made based on reference received from the Central Government or the State Government  or the statutory authority, the Commission shall forward a copy of the report referred to in sub- section (3) to the Central Government or the State  Government or the statutory authority, as the case may be. 

 (5) If the report of the Director General referred to in sub-section (3) reco mends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General. 

 (6) If, after consideration of the objections and suggestions referred to in sub section (5), if any, the Commission agrees with the recommendation  of the Director General, it shall close the matter forthwith and pass such  orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned,  as the case may be. 

 (7) If, after consideration of the objections or suggestions referred to in sub  section (5), if any, the Commission is of the opinion that further investigations is called for, it may direct further investigation in the matter by the Director General or cause further inquiriy to be made by in  the matter or itself proceed with further inquiry in the matter in accordance  with the provisions of this Act. 

 (8) If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act,  and the Commission is of the opinion that further inquiry is called for, it shall  inquire into such contravention in accordance with the provisions of this Act.] 

Orders by Commission after inquiry into agreements or abuse of dominant  position 

  1.   Where after inquiry the Commission finds that any agreement referred  to in section 3 or action of an enterprise in a dominant position, is in  contravention of section 3 or section 4, as the case may be, it may pass all or   any of the following orders, namely:—

(25) 

 (a) direct any enterprise or association of enterprises or person or association  of persons, as the case may be, involved in such agreement, or abuse of  dominant position, to discontinue and not to re-enter such agreement or  discontinue such abuse of dominant position, as the case may be; 

    (b)   impose such penalty, as it may deem fit which shall be not more than  ten percent. of the average of the turnover for the last three        preceding financial years, upon each of such person or enterprises which  are parties to such agreements or abuse: 

 42[Provided that in case any agreement referred to in section 3 has been  entered into by a cartel, the Commission may impose upon each  producer, seller, distributor, trader or service provider included in       that cartel, a penalty of up to three times of its profit for each year  of the continuance of such agreement or ten percent. of its turnover for  each year of the continuance of such agreement, whichever is higher.] 

 43(c)  [Omitted by Competition (Amendment) Act, 2007] 

  (d)  direct that the agreements shall stand modified to the extent and in       the manner as may be specified in the order by the Commission;  (e) direct the enterprises concerned to abide by such other orders as the  Commission may pass and comply with the directions, including payment   of costs, if any; 

 44(f)   [Omitted by Competition (Amendment) Act, 2007] 

 (g) pass such other 45[order or issue such directions] as it may deem fit. 46[Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause(b) of the Explanation to section 5 of the Act, and other members of such a groupare also responsible for, or have contributed to, such a  contravention, then it may pass orders, under this section, against such  members of the group.] 

42 Subs. by Competition (Amendment) Act, 2007 for: 

“ Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service   provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten percent. of the average of the turnover of the   cartel for the last preceding three financial years, whichever is higher;” 

43 Prior to omission, Clause (c) of Section 27 read as under:- 

“award compensation to parties in accordance with the provisions contained in section 34;” 44 Prior to omission, Clause (c) of Section 27 read as under:- 

“recommend to the Central Government for the division of an enterprise enjoying dominant position;” 

45 Subs. by Competition (Amendment) Act, 2007 for “order” 

46 Ins. by Competition (Amendment) Act, 2007

(26) 

Division of enterprise enjoying dominant position 

28 (1) The 47[Commission] may, notwithstanding anything contained in any  other law for the time being in force, by order in writing, direct division of an  enterprise enjoying dominant position to ensure that such enterprise does   not abuse its dominant position. 

(2) In particular, and without prejudice to the generality of the foregoing  powers, the order referred to in sub-section (1) may provide for all or any   of the following matters, namely:— 

 (a) the transfer or vesting of property, rights, liabilities or obligations;  (b) the adjustment of contracts either by discharge or reduction of any  liability or obligation or otherwise; 

 (c) the creation, allotment, surrender or cancellation of any shares, stocks  or securities; 

 48(d)   [Omitted by Competition (Amendment) Act, 2007] 

 (e) the formation or winding up of an enterprise or the amendment of  the memorandum of association or articles of association or any  other instruments regulating the business of any enterprise;  (f) the extent to which, and the circumstances in which, provisions of  the order affecting an enterprise may be altered by the enterprise  and the registration thereof; 

 (g) any other matter which may be necessary to give effect to the   division of the enterprise. 

(3) Notwithstanding anything contained in any other law for the time being in  force or in any contract or in any memorandum or articles of association,         an officer of a company who ceases to hold office as such in consequence of  the division of an enterprise shall not be entitled to claim any compensation  for such cesser. 

Procedure for investigation of combination 

  1. (1) Where the Commission is of the 49[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 show cause to the parties to combination calling upon  them to respond within thirty days of the receipt of the notice, as to  why investigation in respect of such combination should not be conducted.

47 Subs. by Competition (Amendment) Act, 2007 for “Central Government, on recommendation  under clause(f) of section 27” 

48 Prior to omission, clause (d) of sub-section(2) of section 28 read as under:- “the payment of compensation to any person who suffered any loss due to dominant position of  such enterprise;” 

49 Ins. by Competition (Amendment) Act, 2007 

(27) 

50[1(A) After receipt of the response of the parties to the combination under  sub- section (1), the Commission may call for a report from the Director  General and such report shall be submitted by the Director General  within such time as the Commission may direct.] 

 (2) The Commission, if it is prima facie of the opinion that the combination has, or 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, 51 [or the receipt of the report from Director  General called under sub section (1A), whichever is later] direct the par ties to the said combination to publish details of the combination within ten  working days of such direction, in such manner, as it thinks appropriate,  for bringing the combination to the knowledge or information of the  public and persons affected or likely to be affected by such combination. 

 (3) The Commission may invite any person or member of the public, affected or likely to be affected by the said combination, to file his written objections, if any, before the Commission within fifteen working days from the date on which the details of the combination were published under sub-section (2). 

    (4)   The Commission may, within fifteen working days from the expiry of the        period specified in sub-section (3), call for such additional or other       information as it may deem fit from the parties to the said combination. 

 (5) The additional or other information called for by the Commission       shall be furnished by the parties referred to in sub-section (4) within fifteen       days from the expiry of the period specified in sub-section (4). 

    (6)   After receipt of all information and within a period of forty-five working       days from the expiry of the period specified in sub-section (5), the  Commission shall proceed to deal with the case in accordance with the  provisions contained in section 31. 

52[Procedure in case of notice under sub-section (2) of section 6] 

53[30. Where any person or enterprises has given a notice under sub-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.] 

50 Ins. by Competition (Amendment) Act, 2007 

51 Ins. by Competition (Amendment) Act, 2007 

52 Subs. by Competition (Amendment) Act, 2007 for “Inquiry into disclosure under sub-section(2)  of section 6” 

53 Subs. by Competition (Amendment) Act, 2007 for: 

“Where any person or enterprise has given a notice under sub-section (2) of section 6. The  Commission shall inquire—  

(a) whether the disclosure made in the notice is correct; 

(b) whether the combination has, or is likely to have, an appreciable adverse effect on  

competition.”

(28) 

Orders of Commission on certain combinations 

  1. (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 the modification proposed by the Commission         under subsection (3), shall carry out such modification within the period         specified by the Commission. 

    (5)   If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal  

with such combination in accordance with the provisions of this Act. 

    (6)   If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty  working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that sub-section. 

 (7) If the Commission agrees with the amendment submitted by the parties  under subsection (6), it shall, by order, approve the combination. 

 (8) If the Commission does not accept the amendment submitted under sub section (6), then, the parties shall be allowed a further period of thirty working  days within which such parties shall accept the modification proposed by the Commission under sub-section (3). 

    (9)   If the parties fail to accept the modification proposed by the Commission within thirty working days referred to in sub-section (6) or within a further  period of thirty working days referred to in sub-section (8), the combination  shall be deemed to have an appreciable adverse effect on competition  and be dealt with in accordance with the provisions of this Act. 

 (10) Where the Commission has directed under sub-section (2) that the  combination shall not take effect or the combination is deemed to have  an appreciable adverse effect on competition under sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecu tion which may be initiated under this Act, the Commission may order that

(29) 

 (a) the acquisition referred to in clause (a) of section 5; or 

 (b) the acquiring of control referred to in clause (b) of section 5; or 

 (c) the merger or amalgamation referred to in clause (c) of section 5, shall not   be given effect to:  

 Provided that the Commission may, if it considers appropriate, frame   a scheme to implement its order under this sub-section. 

(11) If the Commission does not, on the expiry of a period of 54[two hundred and ten days from the date of notice given to the Commission under sub section (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 Commis sion. 

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 acquistion 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. 

(14) Nothing contained in this Chapter shall affect any proceeding initiated or  which may be initiated under any other law for the time being in force. 

Acts taking place outside India but having an effect on competition in India 32. The Commission shall, notwithstanding that,— 

(a) an agreement referred to in section 3 has been entered into outside India;or (b) any party to such agreement is outside India; or 

(c) any enterprise abusing the dominant position is outside India; or (d) a combination has taken place outside India; or 

(e) any party to combination is outside India; or 

54 Subs. by Competition (Amendment) Act, 2007 for: 

  “ninety working days from the date of publication referred to in sub-section(2) of section 29” 55 Subs. by Competition (Amendment) Act, 2007 for ”ninety days”

(30) 

(f) any other matter or practice or action arising out of such agreement or  dominant position or combination is outside India, 

have power to inquire 56[in accordance with the provisions contained in  sections 19, 20, 26, 29 and 30 of the Act] into such agreement or abuse of dominant position or combination if such agreement or dominant position or  combination has, or is likely to have, an appreciable adverse effect on  competition in the relevant market in India 57[and pass such orders as it may  deem fit in accordance with the provisions of this Act.] 

58[Power to issue interim orders] 

59[33. Where during an inquiry, the Commission is satisfied that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or  section 6 has been committed and continues to be committed or that such  act is about to be committed, the Commission may, by order, temporarily  restrain any party from carrying on such act until the conclusion of such inquiry  or until further orders, without giving notice to such party, where it deems it  necessary.] 

56 Ins. by Competition (Amendment) Act, 2007 

57 Ins. by Competition (Amendment) Act, 2007 

58 Subs. by Competition (Amendment) Act, 2007 for “Power to grant interim relief” 59 Subs. by Competition (Amendment) Act, 2007 for: 

(1) Where during an inquiry before the Commission, it is proved to the satisfaction of the     Commission, by affidavit or otherwise, that an act in contravention of sub-section (1) of  section 3 or sub-section (1) of section 4 or section 6 has been committed and continues  to be committed or that such act is about to be committed, the Commission may, by  order, grant a temporary injunction restraining any party from carrying on such act  until the conclusion of such inquiry or until further orders, without giving notice to the  opposite party, where it deems it necessary. 

(2) Where during the inquiry before the Commission it is proved to the satisfaction of the  Commission by affidavit or otherwise that import of any goods is likely to contravene sub section (1) of section 3 or subsection (1) of section 4 or section 6, it may, by order, grant a  temporary injunction restraining any party from importing such goods until the conclusion  of such inquiry or until further orders, without giving notice to the opposite party, where it  deems it necessary and a copy of such order granting temporary injunction shall be sent  to the concerned authorities. 

  (3)  The provisions of rules 2A to 5 (both inclusive) of Order XXXIX of the First     Schedule  to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be,  apply to a temporary injunction issued by the Commission under this Act, as they apply  to a temporary injunction issued by a civil court, and any reference in any such rule to a  suit shall be construed as a reference to any inquiry before the Commission.

(31) 

  1. 60   [Omitted by Competition (Amendment) Act, 2007] (39 of 2007 with effect     from 12th October 2007) 

Appearance before Commission 

  1. A 61[person or an enterprise] or the Director General may either appear in person or authorise one or more chartered accountants or company secre taries or cost accountants or legal practitioners or any of his or its officers to present his or its case before the Commission. 

Explanation.—For the purposes of this section,— 

  (a)   “chartered accountant” means a chartered accountant as defined in  clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act,     1949 (38 of 1949) and who has obtained a certificate of practice  under sub-section (1) of section 6 of that Act; 

  (b)   “company secretary” means a company secretary as defined in clause (c) of sub-section (1) of section 2 of the Company Secretaries Act, 1980 (56 of 1980) and who has obtained a certificate of practice under sub-section (1) of section 6 of that Act; 

  (c)   “cost accountant” means a cost accountant as defined in clause (b) of sub section (1) of section 2 of the Cost and Works Accountants Act, 1959 (23 of 1959) and who has obtained a certificate of practice under sub- section (1) of section 6 of that Act; 

(d) “legal practitioner” means an advocate, vakil or an attorney of any High  Court, and includes a pleader in practice. 

60 Prior to omission, section 34 read as under:-  

 “ Power to award compensation 

(1) Without prejudice to any other provisions contained in this Act, any person may make an  application to the Commission for an orderfor the recovery of compensation from any  enterprise for any loss or damage shown to have been suffered, by such person as a  result of any contravention of the provisions of Chapter II, having been committed by such  enterprise. 

(2) The Commission may, after an inquiry made into the allegations mentioned in the  application made under sub-section (1), pass an order directing the enterprise to make  payment to the applicant, of the amount determined by it as realisable from the enterprise  as compensation for the loss or damage caused to the applicant as a result of any contra  vention of the provisions of Chapter II having been committed by such enterprise. 

(3) Where any loss or damage referred to in sub-section (1) is caused to numerous persons  having the same interest, one or more of such persons may, with the permission of the  Commission, make an application under that sub-section for and on behalf of, or for the      benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of  the First Schedule to the Code of Civil 

    Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference  therein to a suit or decree shall be construed as a reference to the application before the  Commission and the order of the Commission thereon.” 

61 Subs. by Competition (Amendment) Act, 2007 for “complainant or defendant”

(32) 

Power of Commission to regulate its own procedure 

62[36. (1) In the discharge of its functions, the Commission shall be guided  by the principles of natural justice and, subject to the other pro  visions of this Act and of any rules made by the Central Government, the   Commission shall have the powers to regulate its own procedure.

62 Subs. by Competition (Amendment) Act, 2007 for: 

“(1) The Commission shall not be bound by the procedure laid down by the Code of Civil  Procedure,1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules made by the Central Govern ment, the Commission shall have powers to regulate its own procedure including the  places at which they shall have their sittings, duration of oral hearings when granted, and  times of its inquiry. 

(2) The Commission shall have, for the purposes of discharging its functions umder this  Act, the same powers as are vested in a civil court under the Code of Civil Procedure,      1908(5 of 1908), while trying a suit, in respect of the following matters, namely:—  (a) summoning and enforcing the attendance of any person and examining him on oath;   (b) requiring the discovery and production of documents; 

    (c)  receiving evidence on affidavits; 

 (d) issuing commissions for the examination of witnesses or documents;  (e) subject to the provisions of sections 123 and 124 of the Indian Evidence Act,   1872 (1of 1872), requisitioning any public record or document or copy of such        record or document from any office; 

 (f) dismissing an application in default or deciding it ex parte; (g)any other matter which   may be prescribed. 

(3) Every proceeding before the Commission shall be deemed to be a judicial proceeding     within the meaning of sections 193 and 228 and 

    for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the     Commission shall be deemed to be a civil court for the purposes of section 195 (2 of     1974) and Chapter XXVI of the Code of Criminal Procedure, 1973.   (4)   The Commission may call upon such experts, from the fields of economics, commerce,  accountancy, international trade or from any other discipline as it deems necessary, to  assist the Commission in the conduct of any inquiry or proceeding before it. (5) The Commission may direct any person— 

    (a)  to produce before the Director General or the Registrar or an officer authorised      by it, such books, accounts or other documents in the custody or under the        control of such person so directed as may be specified or described in the direction,  being documents relating to any trade, the examination of which may be required for  the purposes of this Act; 

    (b)  to furnish to the Director General or the Registrar or any officer authorised by it, as  respects the trade or such other information as may be in his possession in relation  to the trade carried on by such person, as may be required for the purposes of this   Act. 

(6) If the Commission is of the opinion that any agreement referred to in section 3 or “abuse  of dominant position referred to in section 4 or the combination referred to in section 5  has caused or is likely to cause an appreciable adverse effect on competition in the  relevant market in India and it is necessary to protect, without further delay, the interests  

 of consumers and other market participants in India, it may conduct an inquiry or  adjudicate upon any matter under this Act after giving a reason able oral hearing to the   parties concerned.” 

(33) 

(2) The Commission shall have, for the purposes of discharging its functions  under this Act, the same powers as are vested in a Civil Court under the     Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in  respect of the following matters, namely:- 

 (a) summoning and enforcing the attendance of any person and  examining him on oath; 

 (b) requiring the discovery and production of documents;      (c)  receiving evidence on affidavit; 

 (d) issuing commissions for the examination of witnesses or documents; 

 (e) requisitioning, subject to the provisions of sections 123 and 124   of the Indian Evidence Act, 1872 (1 of 1872), any public record or         document or copy of such record or document from any office. 

  (3)   The Commission may call upon such experts, from the fields of  economics, commerce, accountancy, international trade or from any  other discipline as it deems necessary to assist the Commission in the  conduct of any inquiry by it. 

(4) The Commission may direct any person: 

 (a) to produce before the Director General or the Secretary or an  officer authorized by it, such books, or other documents in the custody or under the control of such person so directed as may be specified or described in the direction, being documents relating to any trade, the  examination of which may be required for the purposes of this Act; 

 (b) to furnish to the Director General or the Secretary or any other  officer authorized by it, as respects the trade or such other information as may be in his possession in relation to the trade carried on by such  person, as may be required for the purposes of this Act.] 

63 37. [Omitted by Competition (Amendment) Act, 2007] (39 of 2007 with effect from  12th October 2007) 

63 Prior to omission, section 37 read as under:-  

“ Review of orders of Commission 

Any person aggrieved by an order of the Commission from which an appeal is allowed by this Act but no appeal has been preferred, may, within thirty days from the date of the order, apply to the Commission for review of its order and the Commission may make such order thereon   as it thinks fit: 

Provided that the Commission may entertain a review application after the expiry of the said   period of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from preferring the application in time: 

  Provided further that no order shall be modified or set aside without giving an opportunity of being heard to the person in whose favour the order is given and the Director General where he was a party to the proceedings.”

(34) 

Rectification of orders 

  1. (1) With a view to rectifying any mistake apparent from the record, the   Commission may amend any order passed by it under the provisions of this   Act. 

(2) Subject to the other provisions of this Act, the Commission may make—   (a)an amendment under sub-section (1) of its own motion; 

(b) an amendment for rectifying any such mistake which has been brought   to its notice by any party to the order. 

Explanation.—- For the removal of doubts, it is hereby declared that the Commission  shall not, while rectifying any mistake apparent from record, amend substantive part  of its order passed under the provisions of this Act. 

64 [Execution of orders of Commission imposing monetary penalty] 

65[39.(1)If a person fails to pay any monetary penalty imposed on him under this  Act, the Commission shall proceed to recover such penalty, in such      manner as may be specified by the regulations. 

(2) In a case where the Commission is of the opinion that it would be  expedient to recover the penalty imposed under this Act in accordance with     the provisions of the Income-tax Act, 1961 (43 of 1961), it may make a  reference to this effect to the concerned income-tax authority under that  Act for recovery of the penalty as tax due under the said Act. 

(3) Where a reference has been made by the Commission under sub-section  (2) for recovery of penalty, the person upon whom the penalty has been  imposed shall be deemed to be the assessee in default under the Income     Tax Act, 1961 (43 of 1961) and the provisions contained in sections 221 to     227, 228A, 229, 231 and 232 of the said Act and the Second Schedule  to that Act and any rules made there under shall, in so far as may be,  apply as if the said provisions were the provisions of this Act and referred  to sums by way of penalty imposed under this Act instead of to income 

64 Subs. by Competition (Amendment) Act, 2007 for “Execution of orders of Commission” 65 Subs. by Competition (Amendment) Act, 2007 for: 

“ Every order passed by the Commission under this Act shall be enforced by the Commission in the same manner as if it were a decree or order made by a High Court or the principal civil court in a suit pending therein and it shall be lawful for the Commission to send, in the event of its inability to execute it, such order to the High Court or the principal civil court, as the case may be, within the local limits of whose jurisdiction,— 

(a) in the case of an order against a person referred to in sub-clause (iii) or sub-clause (vi) or     subclause (vii) of clause (l) of section 2, the registered office or the sole or principal place     of business of the person in India or where the person has also a subordinate office, that     subordinate office, is situated; 

(b) in the case of an order against any other person, the place, where the person concerned  voluntarily resides or carries on business or personally works for gain, is situated, and  thereupon the court to which the order is so sent shall execute the order as if it were a   decree or order sent to it for execution.”

(35) 

    tax and sums imposed by way of penalty, fine, and interest under the     Income–tax Act, 1961 (43 of 1961) and to the Commission instead of the     Assessing Officer. 

Explanation 1 – Any reference to sub-section (2) or sub-section (6) of section 220 of  the income-tax Act, 1961 (43 of 1961), in the said provisions of that Act or the rules made thereunder shall be construed as references to sections 43 to 45 of this Act. 

Explanation 2 – The Tax Recovery Commissioner and the Tax Recovery Officer referred to in the Income-tax Act, 1961 (43 of 1961) shall be deemed to be the Tax Recovery Commissioner and the Tax Recovery Officer for the purposes of recovery of sums imposed by way of penalty under this Act and reference made by the  

Commission under sub-section (2) would amount to drawing of a certificate by the Tax Recovery Officer as far as demand relating to penalty under this Act. 

Explanation 3– Any reference to appeal in Chapter XVIID and the Second Schedule to the Income-tax Act, 1961 (43 of 1961), shall be construed as a reference to appeal before the Competition Appellate Tribunal under section 53B of this Act.] 

  1. 6640. [Omitted by Competition (Amendment) Act, 2007] (39 of 2007 with effect from  12th October 2007) 

66 Prior to omission, section 40 read as under:- 

  “Any person aggrieved by any decision or order of the Commission may file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the   Commission to him on one or more of the grounds specified in section 100 of the Code of Civil   Procedure, 1908 (5 of 1908): Provided that the Supreme Court may, if it is satisfied that the   appellant was prevented by sufficient cause from filing the appeal within the said period, allow   it to be filed within a further period not exceeding sixty days: Provided further that no appeal shall lie against any decision or order of the Commission made with the consent of the parties.”

(36) 

CHAPTER V 

DUTIES OF DIRECTOR GENERAL 

Director General to investigate contravention 

  1. (1) The Director General shall, when so directed by the Commission,  assist the Commission in investigating into any contravention of the   provisions of this Act or any rules or regulations made thereunder. 

(2) The Director General shall have all the powers as are conferred   upon the Commission under subsection (2) of section 36. (3) Without prejudice to the provisions of sub-section (2), sections 240 and     240A of the Companies Act, 1956 (1 of 1956), so far as may be,  shall apply to an investigation made by the Director General or any  other person investigating under his authority, as they apply to an   inspector appointed under that Act. 

67[Explanation.—For the purposes of this section, — 

(a) the words “the Central Government” under section 240 of the     Companies Act,1956 (1 of 1956) shall be construed as “the Commission”;   (b)   the word “Magistrate” under section 240A of the Companies Act, 1956     (1 of1956) shall be construed as “the Chief Metropolitan Magistrate,  Delhi”.]

67 Ins. by Competition (Amendment) Act, 2007 

(37) 

CHAPTER VI  

PENALTIES 

Contravention of orders of Commission 

68[42.(1) The Commission may cause an inquiry to be made into compliance of its   orders or directions made in exercise of its powers under the Act. 

(2) If any person, without reasonable clause, fails to comply with the   orders or directions of the Commission issued under sections 27, 28, 31,     32, 33, 42A and 43A of the Act, he shall be punishable with fine which  may extend to rupees one lakh for each day during which such   non-compliance occurs, subject to a maximum of rupees ten crore,   as the Commission may determine. 

(3) If any person does not comply with the orders or directions issued, or fails     to pay the fine imposed under sub-section (2), he shall, without     prejudice to any proceeding under section 39, be punishable with     imprisonment for a term which may extend to three years, or with fine     which may extend to rupees twenty-five crore, or with both, as the Chief     Metropolitan Magistrate, Delhi may deem fit: 

 Provided that the Chief Metropolitan Magistrate, Delhi shall not take     cognizance of any offence under this section save on a complaint filed     by the Commission or any of its officers authorized by it.] 

69[Compensation in case of contravention of orders of Commission] 

70[42A. Without prejudice to the provisions of this Act, any person may make an application to the Appellate Tribunal for an order for the recovery of compensation from any enterprise for any loss or damage shown to have  been suffered, by such person as a result of the said enterprise violating  

68 Subs. by Competition (Amendment) Act, 2007 for: 

“(1) Without prejudice to the provisions of this Act, if any person contravenes, without any  reasonable ground, any order of the Commission, or any condition or restriction subject  to which any approval, sanction, direction or exemption in relation to any matter has been  accorded, given, made or granted under this Act or fails to pay the penalty imposed under  this Act, he shall be liable to be detained in civil prison for a term which may extend to  one year, unless in the meantime the Commission directs his release and he shall also  be liable to a penalty not exceeding rupees ten lakhs. 

(2) The Commission may, while making an order under this Act, issue such directions to any  person or authority, not inconsistent with this Act, as it thinks necessary or desirable, for  the proper implementation or execution of the order, and any person who commits  breach of, or fails to comply with, any obligation imposed on him under such direction,  may be ordered by the Commission to be detained in civil prison for a term not exceeding  one year unless in the meantime the Commission directs his release and he shall also be  liable to a penalty not exceeding rupees ten lakhs.” 

69 Ins. by Competition (Amendment) Act, 2007 

70 Ins. by Competition (Amendment) Act, 2007

(38) 

directions issued by the Commission or contravening, without any reason able ground, any decision or order of the Commission issued under sections  27, 28, 31, 32 and 33 or any condition or restriction subject to which any  approval, sanction, direction or exemption in relation to any matter has  been accorded, given, made or granted under this Act or delaying in car rying out such orders or directions of the Commission.] 

Penalty for failure to comply with directions of Commission and Director General 

71[43. If any person fails to comply, without reasonable cause, with a direction   given by— 

 (a) the Commission under sub-sections (2) and (4) of section 36; or 

 (b) the Director General while exercising powers referred to in sub-section  (2)of section 41, 

such person shall be punishable with fine which may extend to rupees one lakh for each day during which such failure continues subject to a maximum of rupees one  crore, as may be determined by the Commission.] 

72[Power to impose penalty for non-furnishing of information on combinations] 

73[43A. If any person or enterprise who fails to give notice to the Commission under  sub- section(2) of section 6, the Commission shall impose on such  person or enterprise a penalty which may extend to one percent, of the  total turnover or the assets, whichever is higher, of such a combination.] 

Penalty for making false statement or omission to furnish material information 44. If any person, being a party to a combination,— 

(a) makes a statement which is false in any material particular, or knowing it  to be false; or 

(b) omits to state any material particular knowing it to be material,  such person shall be liable to a penalty which shall not be less than       rupees fifty lakhs but which may extend to rupees one crore, as may be  determined by the Commission. 

71 Subs. by Competition (Amendment) Act, 2007 for: 

“If any person fails to comply with a direction given by— 

(a) the Commission under sub-section (5) of section 36; or 

(b) the Director General while exercising powers referred to in sub-section (2) of section 41,  the Commission shall impose on such person a penalty of rupees one lakh for each day  during which such failure continues.” 

72 Ins. by Competition (Amendment) Act, 2007 

73 Ins. by Competition (Amendment) Act, 2007

(39) 

Penalty for offences in relation to furnishing of information 

74[45.(1) Without prejudice to the provisions of section 44, if a person, who   furnishes or is required to furnish under this Act any particulars,  documents or any information,— 

 (a) makes any statement or furnishes any document which he knows  or has reason to believe to be false in any material particular; or 

 (b) omits to state any material fact knowing it to be material; or 

 (c) wilfully alters, suppresses or destroys any document which is  required to be furnished as aforesaid, 

such person shall be punishable with fine which may extend to rupees one crore as may be determined by the Commission.] 

(2) Without prejudice to the provisions of sub-section(1), the Commission may     also pass such other order as it deems fit. 

Power to impose lesser penalty 

  1.   The Commission may, if it is satisfied that any producer, seller, distributor, trader or service provider included in any cartel, which is alleged to have violated section 3, has made a full and true disclosure in respect of the alleged violations and such disclosure is vital, impose upon such producer, seller, 

  distributor, trader or service provider a lesser penalty as it may deem fit, than leviable under this Act or the rules or the regulations: 

75[Provided that lesser penalty shall not be imposed by the Commission in cases where the report of investigation directed under section 26 has been received before making of such disclosure.] 

Provided further that lesser penalty shall be imposed by the Commission only in respect of a producer, seller, distributor, trader or service provider included in the cartel, who 76[has] made the full, true and vital disclosures under this section. 

74 Subs. by Competition (Amendment) Act, 2007 for : 

“(1) Without prejudice to the provisions of section 44, if any person, who furnishes or is  required to furnish under this Act any particulars, documents or any information— (a) makes any statement or furnishes any document which he knows or has reason to   believe to be false in any material particular; or 

(b) omits to state any material fact knowing it to be material; or 

(c) wilfully alters, suppresses or destroys any document which is required to be furnished as  aforesaid, the Commission shall impose on such person a penalty which may extend to   rupees ten lakhs.” 

75 Subs. by Competition (Amendment) Act, 2007 for: 

“Provided that lesser penalty shall not be imposed by the Commission in cases where  proceedings for the violation of any of the provisions of this Act or the rules or has the regulations have been instituted or any investigation has been directed to be made under section 26  before making of such disclosure:” 

76 Subs. by Competition (Amendment) Act, 2007 for “first”

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77[Provided also that lesser penalty shall not be imposed by the Commission if the  person making the disclosure does not continue to cooperate with the Commis sion till the completion of the proceedings before the Commission.] Provided also that the Commission may, if it is satisfied that such producer, seller, distributor, trader or service provider included in the cartel had in the course of  proceedings,— 

(a) not complied with the condition on which the lesser penalty was imposed   by the Commission; or 

(b) had given false evidence; or 

(c) the disclosure made is not vital, 

and thereupon such producer, seller, distributor, trader or service provider may be  tried for the offence with respect to which the lesser penalty was imposed and shall  also be liable to the imposition of penalty to which such person has been liable, had  lesser penalty not been imposed. 

Crediting sums realised by way of penalties to Consolidated Fund of India 47. All sums realised by way of penalties under this Act shall be credited to the  Consolidated Fund of India. 

Contravention by companies 

  1. (1) Where a person committing contravention of any of the provisions of this  Act or of any rule, regulation, order made or direction issued thereunder  is a company, every person who, at the time the contravention was  committed, was in charge of, and was responsible to the company for the  conduct of the business of the company, as well as the company, shall  be deemed to be guilty of the contravention and shall be liable to  be proceeded against and punished accordingly: 

 Provided that nothing contained in this sub-section shall render any such  person liable to any punishment if he proves that the contravention was  committed without his knowledge or that he had exercised all due  diligence to prevent the commission of such contravention. 

(2) Notwithstanding anything contained in sub-section (1), where a  contravention of any of the provisions of this Act or of any rule, regulation,  order made or direction issued thereunder has been committed by a  company and it is proved that the contravention has taken place with  the consent or connivance of, or is attributable to any neglect on the     part of, any director, manager, secretary or other officer of the company,     such director, manager, secretary or other officer shall also be deemed  to be guilty of that contravention and shall be liable to be proceeded  against and punished accordingly. 

Explanation.—For the purposes of this section,— 

  (a)  ”company” means a body corporate and includes a firm or other  association of individuals; and 

  (b)  ”director”, in relation to a firm, means a partner in the firm. 77 Ins. by Competition (Amendment) Act, 2007

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CHAPTER VII  

COMPETITION ADVOCACY 

Competition Advocacy  

  1. 49. 78[(1) The Central Government may, in formulating a policy on competition  (including review of laws related to competition) or any other  matter, and a State Government may, in formulating a policy on   competition or on any other matter, as the case may be, make a  reference to the Commission for its opinion on possible effect of such  policy on competition and on the receipt of such a reference, the  Commission shall, within sixty days of making such reference, give its  opinion to the Central Government, or the State Government, as the case     may be, which may thereafter take further action as it deems fit.] 

(2) The opinion given by the Commission under sub-section (1) shall not be  binding upon the Central Government 79 [or the State Government, as the  case may be] in formulating such policy. 

(3) The Commission shall take suitable measures 80[***] for the  promotion of competition advocacy, creating awareness and imparting  training about competition issues. 

78 Subs. by Competition (Amendment) Act, 2007 for: 

“(1) In formulating a policy on competition (including review of laws related to competition), the  Central Government may make a reference to the Commission for its opinion on possible  effect of such policy on competition and on receipt of such a reference, the Commission  shall, within sixty days of making such reference, give its opinion to the Central  

    Government, which may thereafter formulate the policy as it deems fit.” 79 Ins. by Competition (Amendment) Act, 2007 

80 The words “as may be prescribed” omitted by Competition (Amendment) Act, 2007

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CHAPTER VIII 

FINANCE, ACCOUNTS AND AUDIT 

Grants by Central Government 

  1. The Central Government may, after due appropriation made by Parliament by law in this behalf, make to the Commission grants of such sums of money   as the Government may think fit for being utilised for the purposes of this Act. 

Constitution of Fund 

  1. (1) There shall be constituted a fund to be called the “Competition Fund”   and there shall be credited thereto— 

 (a) all Government grants received by the Commission; 

 81(b) [Omitted by Competition (Amendment) Act, 2007] (c) the fees received  under this Act; 

 (d) the interest accrued on the amounts referred to in 82[clauses (a) and (c)].  (2) The Fund shall be applied for meeting— 

 (a) the salaries and allowances payable to the Chairperson and  other Members and the administrative expenses including the salaries,  allowances and pension payable to the Director General, Additional,  Joint, Deputy or Assistant Directors General, the Registrar and       officers and other employees of the Commission; 

 (b) the other expenses of the Commission in connection with the discharge   of its functions and for the purposes of this Act. 

(3) The Fund shall be administered by a committee of such Members   of the Commission as may be determined by the Chairperson. 

(4) The committee appointed under sub-section (3) shall spend monies   out of the Fund for carrying out the objects for which the Fund has been  constituted. 

Accounts and Audit 

  1. (1) The Commission shall maintain proper accounts and other relevant  records and prepare an annual statement of accounts in such form as may  be prescribed by the Central Government in consultation with the  Comptroller and Auditor-General of India. 

81 Prior to omission, clause (b) of section 51(1) read as under :- 

“the monies received as costs from parties to proceedings before the Commission;” 82 Subs. by Competition (Amendment) Act, 2007 for “clauses (a) to (c)”

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(2) The accounts of the Commission shall be audited by the Comptroller and     Auditor- General of India at such intervals as may be specified by  him and any expenditure incurred in connection with such audit shall  be payable by the Commission to the Comptroller and Auditor-General of  India. 

Explanation.—For the removal of doubts, it is hereby declared that the orders of the  Commission, being matters appealable to the 83[Appellate Tribunal or the Supreme  Court], shall not be subject to audit under this section. 

(3) The Comptroller and Auditor-General of India and any other person  appointed by him in connection with the audit of the accounts of the   Commission shall have the same rights, privileges and authority in   connection with such audit as the Comptroller and Auditor-General of  India generally has, in connection with the audit of the Government  accounts and, in particular, shall have the right to demand the  production of books, accounts, connected vouchers and other     documents and papers and to inspect any of the offices of the Commission. 

  (4)  The accounts of the Commission as certified by the Comptroller and  Auditor- General of India or any other person appointed by him in this behalf  together with the audit report thereon shall be forwarded annually to the  Central Government and that Government shall cause the same to  

 be laid before each House of Parliament. 

Furnishing of returns, etc., to Central Government 

  1. (1) The Commission shall furnish to the Central Government at such time  and in such form and manner as may be prescribed or as the Central Gov ernment may direct, such returns and statements and such particulars  in regard to any proposed or existing measures for the promotion of  competition advocacy, creating awareness and imparting training about  competition issues, as the Central Government may, from time to time,  require. 

(2) The Commission shall prepare once in every year, in such form and at such time as may be prescribed, an annual report giving a true and full account  of its activities during the previous year and copies of the report shall be  forwarded to the Central Government. 

(3) A copy of the report received under sub-section (2) shall be laid, as soon  as may be after it is received, before each House of Parliament. 

83 Subs. by Competition (Amendment) Act, 2007 for “Supreme Court”

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84[CHAPTER VIIIA  

COMPETITON APPELLATE TRIBUNAL 

Establishment of Appellate Tribunal: 

53A. (1)  The Central Government shall, by notification, establish an Appellate  Tribunal to be known as Competition Appellate Tribunal – 

 (a) to hear and dispose of appeals against any direction issued or   decision made or order passed by the Commission under sub-sections  (2) and (6) of section 26, section 27, section 28, section 31, section       32, section 33, section 38, section 39, section 43, section 43A,  section 44, section 45 or section 46 of the Act; 

 (b) to adjudicate on claim for compensation that may arise from the       findings of the Commission or the orders of the Appellate Tribunal       in an appeal against any finding of the Commission or under section  42A or under sub- section(2) of section 53Q of this Act, and pass  orders for the recovery of compensation under section 53N of this Act. 

(2) The Headquarter of the Appellate Tribunal shall be at such place as the      Central Government may, by notification, specify. 

Appeal to Appellate Tribunal 

53B. (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. 

  (2)  Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order  made by the Commission is received by the Central Government or the State  Government or a local authority or enterprise or any person referred to in that  sub-section and it shall be in such form and be accompanied by such fee  as may be prescribed: 

Provided that the Appellate Tribunal may entertain an appeal after the  expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period. 

  (3)  On receipt of an appeal under sub-section (1), the Appellate Tribunal may, 

after giving the parties to the appeal, an opportunity of being heard, pass  such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against. 

(4) The Appellate Tribunal shall send a copy of every order made by it to   the Commission and the parties to the appeal.

84 “Chapter VIIIA” Inserted by Competition (Amendment) Act, 2007 

(45) 

  (5)  The appeal filed before the Appellate Tribunal under sub-section (1)  shall be dealt with by it as expeditiously as possible and endeavour shall  be made by it to dispose of the appeal within six months from the date of  receipt of the appeal. 

Composition of Appellate Tribunal 

53C. The Appellate Tribunal shall consist of a Chairperson and not more than  two other members to be appointed by the Central Government. 

Qualifications for appointment of Chairperson and Members of Appellate Tribunal 

53D.(1) The Chairperson of the Appellate Tribunal shall be a person, who is,   or has been a Judge of the Supreme Court or the Chief Justice of a High  Court. 

(2) A member of the Appellate Tribunal shall be a person of ability, integrity  and standing having special knowledge of, and professional experience of     not less than twenty five years in, competition matters including  competition law and policy, international trade, economics, business,     commerce, law, finance, accountancy, management, industry, public  affairs, administration or in any other matter which in the opinion of the  Central Government, may be useful to the Appellate Tribunal. 

Selection Committee 

53E.(1) The Chairperson and members of the Appellate Tribunal shall be   appointed by the Central Government from a panel of names  recommended by a Selection Committee consisting of – 

 (a) the Chief Justice of India or his nominee ………. Chairperson;   (b) the Secretary in the Ministry of Corporate Affairs………. Member;  (c) the Secretary in the Ministry of Law and Justice ………. Member. 

(2) The terms of the Selection Committee and the manner of selection of   panel of names shall be such as may be prescribed. 

Term of office of Chairperson and Members of Appellate Tribunal 

53F.   The Chairperson or a member of the Appellate Tribunal shall hold office as     such for a term of five years from the date on which he enters upon his     office, and shall be eligible for re-appointment: 

 Provided that no Chairperson or other member of the Appellate Tribunal     shall hold office as such after he has attained, – 

(a) in the case of the Chairperson, the age of sixty-eight years; 

(b) in the case of any other member of the Appellate Tribunal, the age of     sixty-five years.

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Terms and conditions of service of chairperson and Members of Appellate Tribunal 

53G(1)The salaries and allowances and other terms and conditions of service  of the Chairperson and other members of the Appellate Tribunal shall be such  as may be prescribed. 

(2) The salaries, allowances and other terms and conditions of service  of the Chairperson and other members of the Appellate Tribunal shall  not be varied to their disadvantage after their appointment. 

Vacancies 

53H. If, for any reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a member of the Appellate Tribunal, the Central Government shall appoint another person in accordance with  the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy  is filled. 

Resignation of Chairperson and Members of Appellate Tribunal 

53I. The Chairperson or a member of the Appellate Tribunal may, by notice in  writing under his hand addressed to the Central Government, resign his      office: 

Provided that the Chairperson or a member of the Appellate Tribunal  shall, unless he is permitted by the Central Government to relinquish his  office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his  successor enters upon his office or until the expiry of his term of office, whichever is the earliest. 

Member of Appellate Tribunal to act as its Chairperson in certain cases 

53J.(1)  In the event of the occurrence of any vacancy in the office of the Chairperson of the Appellate Tribunal by reason of his death or resignation, the senior most Member of the Appellate Tribunal shall act as the Chairperson of  the Appellate Tribunal until the date on which a new Chairperson appointed  in accordance with the provisions of this Act to fill such vacancy enters upon his office. 

(2) When the Chairperson of the Appellate Tribunal is unable to discharge his functions owing to absence, illness or any other cause, the senior-most  member or, as the case may be, such one of the Members of the Appellate  Tribunal, as the Central Government may, by notification, authorize in this behalf, shall discharge the functions of the Chairperson until the  date on which the Chairperson resumes his duties.

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Removal and suspension of Chairperson and Members of Appellate Tribunal 

53K.(1) The Central Government may, in consultation with the Chief Justice of      India, remove from office the Chairperson or any other member of the  Appellate Tribunal, who- 

 (a) has been adjudged an insolvent; or 

    (b)   has engaged at any time, during his terms of office, in any paid  employment; or 

 (c) has been convicted of an offence which, in the opinion of the Centra  Government, involves moral turpitude; or 

 (d) has become physically or mentally incapable of acting as such  Chairperson or other Member of the Appellate Tribunal; or 

    (e)   has acquired such financial or other interest as is likely to  affect prejudicially his functions as such Chairperson or Member of the   Appellate Tribunal; or 

 (f) has so abused his position as to render his continuance in        office prejudicial to the public interest. 

(2) Notwithstanding anything contained in sub-section (1), no Chairperson  or a Member of the Appellate Tribunal shall be removed from his office on the ground specified in clause (e) or clause (f) of sub-section (1) except by an order made by the Central Government after an inquiry made in this behalf  by a Judge of the Supreme Court in which such Chairperson or member had  been informed of the charges against him and given a reasonable op portunity of being heard in respect of those charges. 

Restriction on employment of Chairperson and other Members of Appellate  Tribunal in certain cases 

53L. The Chairperson and other members of the Appellate Tribunal shall not, for a period of two years from the date on which they cease to hold office, accept any employment in, or connected with the management or adminis tration of, any enterprise which has been a party to a proceeding before the  

Appellate Tribunal under this Act: 

Provided that nothing contained in this section shall apply to any employ ment under the Central Government or a State Government or local authority  or in any statutory authority or any corporation established by or under any  Central, State or Provincial Act or a Government Company as defined in section 617 of the Companies Act,1956 (1 of 1956). 

Staff of Appellate Tribunal 

53M.(1) The Central Government shall provide the Appellate Tribunal with such     officers and other employees as it may think fit. 

  (2)  The officers and other employees of the Appellate Tribunal shall dis  charge their functions under the general superintendence and control of  the Chairperson of the Appellate Tribunal.

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  (3)  The salaries and allowances and other conditions of service of the officers  and other employees of the Appellate Tribunal shall be such as may be  prescribed. 

Awarding compensation 

53N.(1) Without prejudice to any other provisions contained in this Act, the  Central Government or a State Government or a local authority or any enterprise or any person may make an application to the Appellate Tribunal  to adjudicate on claim for compensation that may arise from the findings of the Commission or the orders of the Appellate Tribunal in an appeal  against any findings of the Commission or under section 42A or under sub-section(2) of section 53Q of the Act, and to pass an order for the re covery of compensation from any enterprise for any loss or damage shown to  have been suffered, by the Central Government or a State Government or a  local authority or any enterprise or any person as a result of any contraven tion of the provisions of Chapter II, having been committed by enterprise. 

(2) Every application made under sub-section (1) shall be accompanied     by the findings of the Commission, if any, and also be accompanied with  such fees as may be prescribed. 

(3) The Appellate Tribunal may, after an inquiry made into the allegations  mentioned in the application made under sub-section (1), pass an order  directing the enterprise to make payment to the applicant, of the amount de termined by it as realisable from the enterprise as compensation for the loss  or damage caused to the applicant as a result of any contravention of the  provisions of Chapter II having been committed by such enterprise: 

 Provided that the Appellate Tribunal may obtain the recommendations of  the Commission before passing an order of compensation. 

(4) Where any loss or damage referred to in sub-section (1) is caused to numerous persons having the same interest, one or more of such persons  may, with the permission of the Appellate Tribunal, make an application  under that sub-section for and on behalf of, or for the benefit of, the persons so interested, and thereupon, the provisions of rule 8 of Order 1 of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908), shall apply subject to the modification that every reference therein to a suit or decree shall be construed as a reference to the application before the  Appellate Tribunal and the order of the Appellate Tribunal thereon. 

Explanation.—For the removal of doubts, it is hereby declared that— 

(a) an application may be made for compensation before the Appellate  Tribunal only after either the Commission or the Appellate Tribunal on  appeal under clause (a) of sub-section(1) of section 53A of the Act, has  determined in a proceeding before it that violation of the provisions of the  Act has taken place, or if provisions of section 42A or sub-section(2) of sec tion 53Q of the Act are attracted.

(49) 

(b) enquiry to be conducted under sub-section(3) shall be for the   purpose of determining the eligibility and quantum of compensation due  to a person applying for the same, and not for examining afresh the      findings of the Commission or the Appellate Tribunal on whether any  violation of the Act has taken place. 

Procedures and powers of Appellate Tribunal 

53O.(1) The Appellate Tribunal shall not be bound by the procedure laid down in  the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act  and of any rules made by the Central Government, the Appellate Tribunal  shall have power to regulate its own procedure including the places at  which they shall have their sittings. 

(2) The Appellate Tribunal shall have, for the purposes of discharging its   functions under this Act, the same powers as are vested in a civil court  under the Code of 

    Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following  matters, namely:- 

  1. a) summoning and enforcing the attendance of any person and examining  him on oath; 
  2. b) requiring the discovery and production of documents; 
  3. c)   receiving evidence on affidavit; 
  4. d) subject to the provisions of sections 123 and 124 of the Indian Evidence  Act, 1872 (1 of 1872), requisitioning any public record or document or     copy of such record or document from any office; 
  5. e) issuing commissions for the examination of witnesses or documents; f) reviewing its decisions; 
  6. g) dismissing a representation for default or deciding it exparte; 
  7. h) setting aside any order of dismissal of any representation for default or   any order passed by it ex parte; 
  8. i) any other matter which may be prescribed. 

(3) Every proceedings before the Appellate Tribunal shall be deemed to be judicial proceedings within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code (45 of 1860) and the Appellate Tribunal shall be deemed to be a civil court for the purposes of  

section 195 (2 of 1974) and Chapter XXVI of the Code or Criminal Proce dure, 1973. 

Execution of orders of Appellate Tribunal 

53P.(1) Every order made by the Appellate Tribunal shall be enforced by it in t h e  same manner as if it were a decree made by a court in a suit pending 

(50) 

therein, and it shall be lawful for the Appellate Tribunal to send, in case of its inability  to execute such order, to the court within the local limits of whose jurisdiction,- 

  1. a)   in the case of an order against a company, the registered office of the  company is situated; or 
  2. b) in the case of an order against any other person, place where the  person concerned voluntarily resides or carries on business or  personally works for gain, is situated. 

(2) Notwithstanding anything contained in sub-section (1), the Appellate  Tribunal may transmit any order made by it to a civil court having local  jurisdiction and such civil court shall execute the order as if it were a decree  made by that court. 

Contravention of orders of Appellate Tribunal 

53Q.(1) Without prejudice to the provisions of this Act, if any person  contravenes, without any reasonable ground, any order of the Appellate  Tribunal, he shall be liable for a penalty of not exceeding rupees one crore  or imprisonment for a term up to three years or with both as the Chief Metropolitan Magistrate, Delhi may deem fit: 

Provided that the Chief Metropolitan Magistrate, Delhi shall not take cogni zance of any offence punishable under this sub-section, save on a complaint made by an officer authorized by the Appellate Tribubnal. 

(2) Without prejudice to the provisions of this Act, any person may make an application to the Appellate Tribunal for an order for the recovery of compensation from any enterprise for any loss or damage shown to have  been suffered, by such person as a result of the said enterprise contraven ing, without any reasonable ground, any order of the Appellate Tribunal  or delaying in carrying out such orders of the Appellate Tribunal. 

Vacancy in Appellate Tribunal not to invalidate acts or proceedings 

53R. No act or proceeding of the Appellate Tribunal shall be questioned or  shall be invalid merely on the ground of existence of any vacancy or  defect in the constitution of the Appellate Tribunal. 

Right to legal representation 

53S.(1) A person preferring an appeal to the Appellate Tribunal may either appear in person or authorize one or more chartered accountants or company secre taries or cost accountants or legal practitioners or any of its officers to present his or its case before the Appellate Tribunal. 

(2) The Central Government or a State Government or a local authority or any enterprise preferring an appeal to the Appellate Tribunal may au thorize one or more chartered accountants or company secretaries or cost accountants or legal practitioners or any of its officers to act as presenting officers and every person so authorized may present the case with re-

(51) 

spect to any appeal before the Appellate Tribunal. 

  (3)  The Commission may authorize one or more chartered accountants or  company secretaries or cost accountants or legal practitioners or any of its      officers to act as presenting officers and every person so authorized may  present the case with respect to any appeal before the Appellate Tribunal. 

 Explanation – The expressions “chartered accountant” or “company secretary” or  “cost accountant” or “legal practitioner” shall have the meanings respectively  assigned to them in the Explanation to section 35. 

Appeal to Supreme Court 

53T. The Central Government or any State Government or the Commission or any statutory authority or any local authority or any enterprise or any  person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of com munication of the decision or order of the Appellate Tribunal to them; 

Provided that the Supreme court may, if it is satisfied that the appli cant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed after the expiry of the said period of sixty days. 

Power to Punish for contempt 

53U. The Appellate Tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of contempt of itself as a High Court has  and may exercise and, for this purpose, the provisions of the Contempt  of Courts Act, 1971 (70 of 1971) shall have effect subject to modifications that,– 

 (a) the reference therein to a High Court shall be construed as including  a reference to the Appellate Tribunal; 

 (b) the references to the Advocate-General in section 15 of the said Act       shall be construed as a reference to such Law Officer as the       Central Government may, by notification, specify in this behalf. ]

(52) 

CHAPTER IX  

MISCELLANEOUS 

Power to exempt 

  1.   The Central Government may, by notification, exempt from the application  of this Act, or any provision thereof, and for such period as it may     specify   in such notification— 

 (a) any class of enterprises if such exemption is necessary in the interest  of security of the State or public interest; 

 (b) any practice or agreement arising out of and in accordance with  any obligation assumed by India under any treaty, agreement or  convention with any other country or countries; 

 (c) any enterprise which performs a sovereign function on behalf of   the Central Government or a State Government: 

Provided that in case an enterprise is engaged in any activity including the activity  relatable to the sovereign functions of the Government, the Central Government  may grant exemption only in respect of activity relatable to the sovereign func tions. 

Power of Central Government to issue directions 

55.(1) Without prejudice to the foregoing provisions of this Act, the Commission shall, in exercise of its powers or the performance of its functions under this  Act, be bound by such directions on questions of policy, other than those  relating to technical and administrative matters, as the Central Govern ment may give in writing to it from time to time: 

Provided that the Commission shall, as far as practicable, be given  an opportunity to express its views before any direction is given under  this sub- section. 

(2) The decision of the Central Government whether a question is one of policy     or not shall be final. 

Power of Central Government to supersede Commission 

  1. (1) If at any time the Central Government is of the opinion— 

 (a) that on account of circumstances beyond the control of the Commission,  it is unable to discharge the functions or perform the duties imposed  on it by or under the provisions of this Act; or 

 (b) that the Commission has persistently made default in complying with any direction given by the Central Government under this Act or in  the discharge of the functions or performance of the duties imposed on it  by or under the provisions of this Act and as a result of such default the  financial position of the Commission or the administration of the Com mission has suffered; or

(53) 

 (c) that circumstances exist which render it necessary in the public  interest so to do,  

  the Central Government may, by notification and for reasons to be specified therein, supersede the Commission for such period, not exceeding six months,   as may be specified in the notification: 

Provided that before issuing any such notification, the Central Government shall give a reasonable opportunity to the Commission to make representations  against the proposed supersession and shall consider representations, if any,  of the Commission. 

  (2)  Upon the publication of a notification under sub-section (1)      superseding the Commission,— 

 (a) the Chairperson and other Members shall as from the date of       supersession, vacate their offices as such; 

 (b) all the powers, functions and duties which may, by or under the  provisions of this Act, be exercised or discharged by or on behalf of the  Commission shall, until the Commission is reconstituted under sub section (3), be exercised and discharged by the Central Government or  such authority as the Central Government may specify in this behalf; 

 (c) all properties owned or controlled by the Commission shall, until  the Commission is reconstituted under sub-section (3), vest in the   Central Government. 

  (3) On or before the expiration of the period of supersession specified in the notification issued under subsection (1), the Central Government shall reconstitute the Commission by a fresh appointment of its Chairperson  and other Members and in such case any person who had vacated his office under clause (a) of sub-section (2) shall not be deemed to be disquali fied for re-appointment. 

  (4)  The Central Government shall cause a notification issued under sub-  section (1) and a full report of any action taken under this section and  the circumstances leading to such action to be laid before each House of  Parliament at the earliest. 

Restriction on disclosure of information 

  1. No information relating to any enterprise, being an information which has been obtained by or on behalf of 85[the Commission or the Appellate Tribunal] for the  purposes of this Act, shall, without the previous permission in writing of the  enterprise, be disclosed otherwise than in compliance with or for the purposes of  this Act or any other law for the time being in force. 

85 Subs. by Competition (Amendment) Act, 2007 for “the Commission”

(54) 

86[Chairperson, Members, Director General, Secretary, officers and other employees, etc., to be public servants] 

87[58.The Chairperson and other Members and the Director General, Additional, Joint, Deputy or Assistant Directors General and Secretary and officers and other employees of the Commission and the Chairperson, Members, officers and other employees of the Appellate Tribunal shall be deemed, while acting or pur porting to act in pursuance of any of the provisions of this Act, to be public ser vants within the meaning of section 21 of the Indian Penal Code (45 of 1860).] 

Protection of action taken in good faith 

  1. No suit, prosecution or other legal proceedings shall lie against the Central Government or Commission or any officer of the Central Government or the Chairperson or any Member or the Director- General, Additional, Joint,  Deputy or Assistant Directors General or 88[the Secretary or officers or other employees of the Commission or the Chairperson, Members, officers and other employees of the Appellate Tribunal] for anything which is in good faith done or  intended to be done under this Act or the rules or regulations made thereunder. 

Act to have overriding effect 

  1. The provisions of this Act shall have effect notwithstanding anything  inconsistent therewith contained in any other law for the time being in force. 

Exclusion of jurisdiction of civil courts 

  1. No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which the 89 [Commission or the Appellate Tribunal] is empowered  by or under this Act to determine and no injunction shall be granted by any court  or other authority in respect of any action taken or to be taken in pursuance of  any power conferred by or under this Act. 

86 Subs. by Competition (Amendment) Act, 2007 for “Members, Director General, Registrar,   officers and other employees, etc. of Commission to be public servants” 87 Subs. by Competition (Amendment) Act, 2007 for : 

“The Chairperson and other Members and the Director General, Additional, Joint, Deputy or   Assistant Directors General and Registrar and officers and other employees of the Commission shall be deemed, while acting or purporting to act in pursuance of any of the  provisions of this Act, to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).” 

88   Subs. by Competition (Amendment) Act, 2007 for “the Registrar or officers or other employees of the Commission” 

89 Subs. by Competition (Amendment) Act, 2007 for “Commission”

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Application of other laws not barred 

  1. The provisions of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force. 

Power to make rules 

  1. (1)  The Central Government may, by notification, make rules to carry  out the provisions of this Act; 

(2) In particular, and without prejudice to the generality of the foregoing power,  such rules may provide for all or any of the following matters, namely:-— 

 90[(a) the term of the Selection Committee and the manner of selection of          panel of names under sub-section (2) of Section 9;] 

 (b) the form and manner in which and the authority before whom the         oath of office and of secrecy shall be made and subscribed to under  sub-section (3) of section 10; 

 91(c)   [Omitted by Competition (Amendment) Act, 2007. 

 (d) the salary and the other terms and conditions of service  including travelling expenses, house rent allowance and  conveyance facilities, sumptuary allowance and medical facilities   to be provided to the Chairperson and other Members under   sub-section (1) of section 14; 

 92[(da) the number of Additional, Joint, Deputy or Assistant Directors         General or such officers or other employees in the office of Director  General and the manner in which such Additional, Joint, Deputy         or Assistant Directors General or such officers or other employees  may be appointed under sub- section (1A) of section 16; ] 

 (e) the salary, allowances and other terms and conditions of service  of the Director General, Additional, Joint, Deputy or Assistant  Directors General or 93[such officers or other employees] under  sub-section (3) of section16; 

    (f)    the qualifications for appointment of the Director General, Additional,  Joint, Deputy or Assistant Directors General or 94[such         officers or other employees] under sub-section (4) of section 16; 

90 Subs. by Competition (Amendment) Act, 2007 for: 

  “ the manner in which the Chairperson and other Members shall be selected under section 9;” 91 Prior to omission, clause (c) of sub-section(2) of section 63 read as under:-   “the financial and administrative powers which may be vested in the Member Administration under section 13;” 

92 Ins. by Competition (Amendment) Act, 2007 

93   Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants or officers” 94   Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants or officers”

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(g) the salaries and allowances and other terms and conditions of service   of the 95 [Secretary] and officers and other employees payable,        and the number of such officers and employees under sub-section (2)  of section17; 

  96(h)   [Omitted by Competition (Amendment) Act, 2007] 

97(i)   [Omitted by Competition (Amendment) Act, 2007] 

98(j)   [Omitted by Competition (Amendment) Act, 2007] 

(k) the form in which the annual statement of accounts shall be prepared   under sub-section (1) of section 52; 

(/) the time within which and the form and manner in which the  Commission may furnish returns, statements and such particulars  as the Central Government may require under sub-section (1) of section   53; 

(m) the form in which and the time within which the annual report shall be   prepared under sub-section (2) of section 53; 

99[(ma) the form in which an appeal may be filed before the Appellate Tribunal  under sub-section (2) of section 53B and the fees payable in respect of  such appeal; 

(mb) the term of the Selection Committee and the manner of selection of panel  of names under sub-section(2) of section 53E; 

(mc) the salaries and allowances and other terms and conditions of service  of the Chairperson and other Members of the Appellate Tribunal under  sub- section (1) of section 53G; 

(md) the salaries and allowances and other conditions of service of the       officers and other employees of the Appellate Tribunal under  sub-section (3) of section 53M; 

95 Subs. by Competition (Amendment) Act, 2007 for “Registrar” 

96 Prior to omission, clause (h) of sub-section(2) of section 63 read as under:- “for securing any case or matter which requires to be decided by a Bench composed of more than two Members under sub-section (4) of section 23;” 

97 Prior to omission, clause (i) of sub-section(2) of section 63 read as under:- “any other matter in respect of which the Commission shall have power under clause (g) of sub-section (2) of section 36;” 

98 Prior to omission, clause (j) of sub-section(2) of section 63 read as under:- “the promotion of competition advocacy, creating awareness and imparting training about   competition issues under sub-section (3) of section49;” 

99 Ins. by Competition (Amendment) Act, 2007

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 (me) the fee which shall be accompanied with every application made under  sub-section (2) of section 53N; 

    (mf)   the other matters under clause (i) of sub-section(2) of section 53O  in respect of which the Appellate Tribunal shall have powers under the          Code of Civil Procedure, 1908 (5 of 1908) while trying a suit;]  100[(n) the manner in which the monies transferred to the Competition  Commission of India or the Appellate Tribunal shall be dealt with by  the Commission or the Appellate Tribunal, as the case may be, under  the fourth proviso to sub-section(2) of section 66 ;] 

 (o) any other matter which is to be, or may be, prescribed, or in  respect of which provision is to be, or may be, made by rules.   (3) Every notification issued under sub-section(3) of section 20 and section 

54 and every rule made under this Act by the Central Government shall be  laid, as soon as may be after it is made, before each House of Parlia ment, while it is in session, for a total period of thirty days which may be  comprised in one session, or in two or more successive sessions, and if,  before the expiry of the session immediately following the session or the  successive sessions aforesaid, both Houses agree in making any modifi cation in the notification or rule, or both Houses agree that the notification should not be issued or rule should not be made, the notification or rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annul ment shall be without prejudice to the validity of anything previously done  under that notification or rule, as the case may be. 

Power to make regulations 

  1. (1)   The Commission may, by notification, make regulations consistent with this  Act and the rules made thereunder to carry out the purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing  provisions, such regulations may provide for all or any of the following  matters, namely:— 

 (a) the cost of production to be determined under clause (b) of  the Explanation to section 4; 

    (b)   the form of notice as may be specified and the fee which  maybe determined under sub-section(2) of section 6;     (c)   the form in which details of the acquisition shall be filed  under subsection(5) of Section 6; 

101[(d) the procedures to be followed for engaging the experts and profession-  als under sub-section(3) of section 17; 

100 Subs. by Competition (Amendment) Act, 2007 for: 

“ the manner in which the monies transferred to the Central Government shall be dealt with by  that Government under the fourth proviso to sub-section (2) of section 66;” 

101 Subs. by Competition (Amendment) Act, 2007 for: 

  (d) the fee which may be determined under clause (a) of sub-section (1) of section 19; (e) any other matter in respect of which provision is to be, or may be, made by regulations.”

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 (e) the fee which may be determined under clause (a) of sub-section(1) of         section 19; 

 (f) the rules of procedure in regard to the transaction of business at  the meetings of the Commission under sub-section(1) of section 22; 

 (g) the manner in which penalty shall be recovered under          sub-section(1) of section 39; 

 (h) any other matter in respect of which provision is to be, or may be,   made by regulations.] 

(3) Every regulation made under this Act shall be laid, as soon as may be after  it is made, before each House of Parliament, while it is in session, for a total  period of thirty days which may be comprised in one session or in two or  more successive sessions, and if, before the expiry of the session 

immediately following the session or the successive sessions aforesaid,  both Houses agree in making any modification in the regulation, or both Houses agree that the regulation should not be made, the regulation  shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously  done under that regulation. 

Power to remove difficulties 

  1. (1)   If any difficulty arises in giving effect to the provisions of this Act, the     Central Government may, by order published in the Official Gazette,  make such provisions, not inconsistent with the provisions of this Act as  

    may appear to it to be necessary for removing the difficulty: Provided that  no such order shall be made under this section after the expiry of a period   of two years from the commencement of this Act. 

(2) Every order made under this section shall be laid, as soon as may be  after it is made, before each House of Parliament. 

Repeal And saving 

66.[(1) 102The Monopolies and Restrictive Trade Practices Act, 1969 (54 of     1969) is hereby repealed and the Monopolies and Restrictive Trade  Practices Commission established under sub-section (1) of section 5 of the  said Act (hereinafter referred to as the repealed Act) shall stand dissolved. 

102 Subs. by Competition (Amendment) Act, 2007 for: 

  (1)  “The Monopolies and Restrictive Trade Practices Act, 1969 is hereby repealed and the  Monopolies and Restrictive Trade Practices Commission established under sub-section   (1)   of section 5 of the said Act (hereinafter referred to as the repealed Act) (54 of 1969) shall  stand dissolved.”

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(102 A)[***] 

  (1A)The repeal of the Monopolies and Restrictive Trade Practices Act, 1969 (54   of 1969) shall, however, not affect,- 

  1. a) the previous operation of the Act so repealed or anything duly done or  Suffered thereunder; or 
  2. b) any right, privilege, obligation or liability acquired, accrued or incurred  under the Act so repealed; or 
  3. c)   any penalty, confiscation or punishment incurred in respect of any  contravention under the Act so repealed; or 
  4. d) any proceeding or remedy in respect of any such right, privilege,         obligation, liability, penalty, confiscation or punishment as aforesaid,  and any such proceeding or remedy may be instituted, continued or         enforced, and any such penalty, confiscation or punishment may be  imposed or made as if that Act had not been repealed.] 

  2)  On the dissolution of the Monopolies and Restrictive Trade Practices Commission, the person appointed as the Chairman of the Monopolies and  Restrictive Trade Practices Commission and every other person appointed as  Member and Director General of Investigation and Registration, Additional,  Joint, Deputy, or Assistant Directors General of Investigation and Registration  and any officer and other employee of that Commission and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensa tion not exceeding three months’ pay and allowances for the premature termi nation of term of their office or of any contract of service. 

Provided that the Director General of Investigation and Registration,  Additional, Joint, Deputy or Assistant Directors General of Investigation and  Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices 

102 A  The proviso and the explanation omitted by Act 39 of 2009, sec 2(a)(w.e.f14-10-2009).The proviso and the explanation, before ommission, stood as under: 

“Provided that, notwithstanding anything contained in this sub-section, the Monopolies and Re strictive Trade Practices Commission established under sub section(1) of section 5 of the re pealed Act, may continue to exercise jurisdiction and power under the repealed Act for a period  of two years from the date of the commencement of this Act in respect of all cases or proceed ings (including complaints received by it or references or applications made to it) filed before the commencement of this Act as if the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) had not been repealed and all the provisions of the said Act so repealed shall mutatis mutandis apply to such cases or proceedings or complaints or references or applications and  to all other matters.  

Explanation: For the removal of doubts, it is hereby declared that nothing in this proviso shall  confer any jurisdiction or power upon the Monopolies and Restrictive Trade Practices Commis sion to decide or adjudicate any case or proceeding arising under the Monopolies and Restric tive Trade Practices Act, 1969 (54 of 1969) on or after the commencement of this Act.”

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Commission appointed on deputation basis to the Monopolies and Restrictive  Trade Practices Commission, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be: 

103[Provided further that the Director-General of Investigation and Registration,  Additional, Joint, Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and Restrictive Trade Practices Commission,  employed on regular basis by the Monopolies and Restrictive Trade Practices  Commission, shall become, on and from such dissolution, the officer and employ ee, respectively, of the Competition Commission of India or the Appellate Tribunal,  in such manner as may be specified by the Central Government, with the same rights and privileges as to pension, gratuity and other like matters as would have  been admissible to him if the rights in relation to such Monopolies and Restric tive Trade Practices Commission had not been transferred to, and vested in, the Competition Commission of India or the Appellate Tribunal, as the case may  be, and shall continue to do so unless and until his employment in the Competi tion Commission of India or the Appellate Tribunal, as the case may be, is duly terminated or until his remuneration, terms and conditions of employment are duly  altered by the Competition Commission of India or the Appellate 

Tribunal, as the case may be.] 

Provided also that notwithstanding anything contained in the Industrial Disputes  Act, 1947(14 of 1947), or in any other law for the time being in force, the transfer of the services of any Director General of Investigation and Registration, Additional,  Joint, Deputy or Assistant Directors General of Investigation and Registration or  any officer or other employee, employed in the Monopolies and Restrictive Trade Practices Commission, to 104[the Competition Commission of India or the Appellate  Tribunal], as the case may be, shall not entitle such Director General of Investiga tion and Registration, Additional, Joint, Deputy or Assistant Directors General of  Investigation and Registration or any officer or other employee any compensation under this Act or any other law for the time being in force and no such claim shall  be entertained by any court, tribunal or other authority: Provided also that where  the Monopolies and Restrictive Trade Practices Commission has established a  provident fund, superannuation, welfare or other fund for the benefit of the Director

103 Subs. by Competition (Amendment) Act, 2007 for: 

“Provided further that the Director General of Investigation and Registration, Additional, Joint,  Deputy or Assistant Directors General of Investigation and Registration or any officer or other employee who has been, immediately before the dissolution of the Monopolies and  Restrictive Trade Practices Commission, employed on regular basis by the Monopolies and Restrictive Trade Practices Commission, shall become, on and from such dissolution, the  officer and employee, respectively, of the Central Government with the same rights and privileges as to pension, gratuity and other like matters as would have been admissible to him  if the rights in relation to such Monopolies and Restrictive Trade Practices Commission had not  been transferred to, and vested in, the Central Government and shall continue to do so unless  and until his employment in the Central Government is duly terminated or until his remunera tion, terms and conditions of employment are dulyaltered by that Government:” 104 Subs. by Competition (Amendment) Act, 2007 for “the Central Government” 

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General of Investigation and Registration, Additional, Joint, Deputy or Assistant  Directors General of Investigation and Registration or the officers and other em ployees employed in the Monopolies and Restrictive Trade Practices Commission,  the monies relatable to the officers and other employees whose services have been transferred by or under this Act to 105[the Competition Commission of India  or the Appellate Tribunal, as the case may be, shall, out of the monies standing]  on the dissolution of the Monopolies and Restrictive Trade Practices Commission  to the credit of such provident fund, superannuation, welfare or other fund, stand  transferred to, and vest in, 106[the Competition Commission of India or the Appel late Tribunal as the case may be, and such monies which stand so transferred  shall be dealt with by the said Commission or the Tribunal, as the case may be, in  such manner as may be prescribed.] 

107 (3.) All cases pertaining to monopolistic trade practices or restrictive trade practices pending (including such cases, in which any unfair trade practice has also been alleged), before the Monopolies and Restrictive Trade Practices Commission shall , (107 A) on the commencement of the competition  Amendment Act,.2009 stand transferred to the Appellate Tribunal and shall be adjudicated by the Appellate Tribunal in accordance with the provisions of the  repealed Act as if that Act had not been repealed.] 

(107B) “Explanation-‘For the removal of doubts, it is hereby declared that  all cases referred to in this sub-section, sub-section(4)and sub-sec tion (5)shall be deemed to include all applications made for the losses or damages under section 12(B)of the Monopolies and Restrictive Trade Prac tices Act,1969(54of1969)as it stood before its repeal”; 

4.) Subject to the provisions of sub-section(3), all cases pertaining to unfair trade  practices other than those referred to in clause (x) of sub-section(1) of section  36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before  

105 Subs. by Competition (Amendment) Act, 2007 for “the Central Government shall, out of the monies standing” 

106 Subs. by Competition (Amendment) Act, 2007 for: 

“the Central Government and such monies which stand so transferred shall be dealt with by the said Government in such manner as may be prescribed.” 

107 Subs. by Competition (Amendment) Act, 2007 for: 

“ All cases pertaining to monopolistic trade practices or restrictive trade practices pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act, including such cases, in which any unfair trade practice has also  been alleged, shall, on such commencement, stand transferred to the Competition Commis sion of India and shall be adjudicated by that Commission in accordance with the provisions  of the repealed Act as if that Act had not been repealed.” Subs by Act 39of 2009, sec 2(b)(i) w.e.f 14-10-2009) for “after the expiry of two years referred to in the proviso to subsection(1)” Explanation added by Act 39of 2009, sec 2(b)(ii) w.e.f 14-10-2009) 

107 A  Subs by Act 39 of 2009, Section 2(b)(i) w.e.f 14-10-2009, for” after the expiry of two year re  ferred to in the proviso to the Subsection (i)” 

107 B  Explanation added by Act 39 of 2009, Section 2(b)(ii) w.e.f 14-10-2009.

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the Monopolies and Restrictive Trade Practices Commission 108[“immediately  before the commencement of the Competition (Amendment) Act, 2009 shall, on such commencement”, shall, stand transferred to the National Commission  constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission shall dispose of such cases as if they were cases filed under that Act:  

Provided that the National Commission may, if it considers appropriate, trans fer any case transferred to it under this sub-section, to the concerned State  Commission established under section 9 of the Consumer Protection Act, 1986 (68 of 1986) and that State Commission shall dispose of such case as if it was filed under that Act. 

(108 A) Provided further that all the cases relating to the unfair trade practices  pending, before the National Commission under this sub-section, on or before  the date on which the competition (Amendment) Bill, 2009 receives the assent of the President, shall, on and from that date, stand transferred to the Appel late Tribunal and be adjudicated by the Appellate Tribunal in accordance with  

the provisions of the repealed Act as if that Act had not been repealed. 5.) (109) All cases pertaining to unfair trade practices referred to in clause (x) of  subsection (1) of section 36A of the Monopolies and Restrictive Trade Prac tices Act, 1969 and pending before the Monopolies and Restrictive Trade Practices Commission shall, (109A) “on the commencement of the Competition  (Amendment) Act, 2009” stand transferred to the Appellate Tribunal and the Appellate Tribunal shall dispose of such cases as if they were cases filed under that Act.] 

6.) All investigations or proceedings, other than those relating to unfair trade practices, pending before the Director General of Investigation and Registra tion on or before the commencement of this Act shall, on such commence ment, stand transferred to the Competition Commission of India, and the  

Competition Commission of India may conduct or order for conduct of such  investigation or proceedings in the manner as it deems fit. 

7.) All investigations or proceedings, relating to unfair trade practices, other than those referred to in clause (x) of sub-section (1) of section 36A of the Monopolies 

108   Subs. by Act 39 of 2009, Section 2(c)(i) w.e.f 14-10-2009.for “on or before the expiry of two years referred to in the proviso to subsection (1)” 

108 A  Proviso inserted by Act 39 of 2009, Section 2(c)(ii) w.e.f 14-10-2009. 

109 Subs. by Competition (Amendment) Act, 2007 for: 

“ All cases pertaining to unfair trade practices referred to in clause (x) of sub-section (1) of   section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (54 of 1969) and pending before the Monopolies and Restrictive Trade Practices Commission on or before the commencement of this Act shall, on such commencement, stand transferred to the Competition Commission of India, and the Competition Commission of India shall dispose of   such cases as if they were cases filed under that Act,.” 

109 A  Subs by Act 39 of 2009, Section 2(d) w.e.f 14-10-2009 for “after the expiry of two years referred to in the proviso to subsection (1)” 

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and Restrictive Trade Practices Act, 1969(54 of 1969) and pending before the Director General of Investigation and Registration on or before the com mencement of this Act shall, on such commencement, stand transferred to the  National Commission constituted under the Consumer Protection Act, 1986 (68 of 1986) and the National Commission may conduct or order for conduct 

of such investigation or proceedings in the manner as it deems fit. (109B) “Provided that all investigations or proceedings, relating to unfair trade  practices pending before the National Commission, on or before the date  on which the Competition (Amendment) Bill, 2009 receives the assent of the President shall, on and from that date, stand transferred to the Appellate Tribunal and the Appellate Tribunal may conduct or order for conduct of such  investigation or proceedings in the manner as it deems fit.” 

8.) All investigations or proceedings relating to unfair trade practices referred to in clause (x) of subsection (1) of section 36A of the Monopolies and Restric tive Trade Practices Act, 1969(54 of 1969), and pending before the Director General of Investigation and Registration on or before the commencement of  

this Act shall, on such commencement, stand transferred to the Competition  Commission of India and the Competition Commission of India may conduct  or order for conduct of such investigation in the manner as it deems fit. 

  9.)  Save as otherwise provided under sub-sections (3) to (8), all cases or  proceedings pending before the Monopolies and Restrictive Trade Practices  Commission shall abate. 

10.)The mention of the particular matters referred to in sub-sections (3) to (8)  shall not be held to prejudice or affect the general application of section 6 of     the General Clauses Act, 1897 (10 of 1897) with regard to the effect of  repeal. 

109 B  Proviso inserted by Act. 39 of 2009, Section 2(e) w.e.f 14-10-2009.

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