Respondents PDF

TEAM CODE – T 10
BEFORE THE
HON’BLE SUPREME COURT OF INDOI
APPEAL NO……………………………. / 2012
Under Appellate Jurisdiction

Article 132 of the Constitution
▬ IN THE MATTER OF ▬
Government of Indoi through The Secretary, Ministry of Petroleum & Natural Gas
Indoi Oil Corporation Ltd. …………………………………………………….. Appellant 1
Hexxon Petroleum Corporation Ltd………………………………................... Appellant 2
Bright Petroleum Corporation Ltd.………………………………………….… Appellant 3
versus
Retro Petroleum Ltd........................................................................................ Respondent
: ON SUBMISSION TO:
The Honorable Supreme Court of Indoi
-: Memorial on Behalf of the Respondent-

-FILED BY THE COUNSEL FOR THE RESPONDENT-
2nd Dr. Paras Diwan Memorial National Energy Moot Court Competition, 2012
TABLE OF CONTENTS
1. Index of Authorities.........................................................................................................4
1.1 Case Laws....................................................................................................................4
1.2 Articles and Reports.....................................................................................................6
1.3 Statutes and Guidelines................................................................................................6
1.4 List of Abbreviations....................................................................................................8
2. Statement of Jurisdiction.................................................................................................9
3. Statement of Facts...........................................................................................................10
4. Statement of Issues..........................................................................................................11
5. Summary of Arguments.................................................................................................12
6. Arguments Advanced.....................................................................................................13
6.1. Whether CCI has the jurisdiction to decide matters relating to abuse of dominant
position and predatory pricing in petroleum products (HSD in the instant case)…13
6.1.1 Factors to determine Dominant Position.

6.1.2 Meaning of Abuse of dominant position.
6.1.3 Relevant market.
6.1.4 Predatory Pricing.
6.1.5 Major elements of Dominant position.
6.1.6 Duties of Commission.
6.2. Whether the act of NOMCs to sell HSD at regulated price is anti-
competitive...................................................................................................................25
6.2.1 Anti- Competitive Activity.
6.2.2 Anti- competitive agreement.
6.2.3 Price.
6.2.4 Cartel.
6.2.5 Predatory Pricing.
MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT
Page 2
6.3. Whether the Government of Indoi is legally justified to regulate the prices of
HSD after dismantling the APM?...........................................................................35
6.3.1 Pressure on Resources.

6.3.2 Views of Oil Marketing Companies and Private Refineries.
6.3.3 Need for Competition.
6.3.4 Concerns of private sector companies.
6.3.5 Marketing of controlled petroleum products by private sector companies.
6.3.6 Marketing of Transportation Fuels by private parties in post deregulation.
.period.
7. Prayer.....................................................................................................................................48
Page 3
INDEX OF AUTHORITIES
CASE LAWS CITATION/PAGE
1. American Tobacco Co. ET AL. v. United States; 328 U.S. 781 (1946).............................. 21
2. Association of Third Party Administrators v. General Insurers (Public Sector) Association
of India; Case No. 49/2010 (CCI).....................................................................................26
3. DLF Park Place Residents Welfare Association v. DLF Limited Haryana Urban
Development Authority Department of Town and Country Planning; 2011CompLR490
(CCI).................................................................................................................................15
4. FTC v. Indiana Fed'n of Dentists; 476 U.S. 447, 460-61...................................................22
5. IBP Co. Limited Vs Nand Kishore Bajpai and Ors; 147(2008) DLT 764..........................44
6. Indian Oil Corporation Ltd., Bharat Petroleum Corporation Ltd. and others. v. Reliance
Industries Ltd. and Ors; 2009ELR(APTEL)954...............................................................31
7. Jindal Steel Authority Ltd. v. Steel Authority of India; Competition Commission of India,
Case No. 11/2009..............................................................................................................16
8. Kshitij Ranjan v. Indian Newspaper Society; Case No. 34/2011(CCI)...............................32
9. Mahindra and Mahindra Limited v Union of India; AIR 1979 SC 798............................32
10. North eastern Tel. Co. v. AT & T; 651 F.2d 76, 84-85 (2d Cir.1981)...............................22
11. Rebel Oil Co. v. Atl. Richfield Co; 51 F.3d 1421, 1434 (9th Cir.1995)............................22
12. Rothery Storage & Van Co. v. Atlas Van Lines; 792 F.2d 210.........................................19
Page 4
13. Shri Neeraj Malhotra v. North Delhi Power Limited, BSES Rajdhani Power Limited and
BSES Yamuna Power Limited; Competition Commission of India; Case No. 6 of 2009..23
14. Standard Oil Company of New Jersey v. U.S;221 U.S. 1(1911).........................................20
15. Steel Authority of India Ltd V CCI; (2010) 10 SCC 744....................................................16
16. Union of India v. Hindustan Development Corporation and Others; (1993)3 SCC 499.....28
17. United States of America, Appellee, v. Microsoft Corporation, Appellant; 253 F.3d 34
(2001).................................................................................................................................21
18. United States v. Aluminium Co. of America; 148 F.2d 416, 429.........................................21
19. United States v. E.I. du Pont de Nemours & Co; 351 U.S. 377 (1956)...............................22
20. U.S. v. Trans-Missouri Freight Association; 168 U.S. 290, 328 (1897)..............................20
21. Wool Worth (India) Ltd. and Anr. Vs. Union of India (UOI) and Ors; W.P. (C)
2373/1998..........................................................................................................................45
Page 5
ARTICLES AND REPORTS
1. Bain, Joe S., Industrial Organization, New York: Wiley & Sons,1968
2. Barriers to Entry, Harold Demsetz; The American Economic Review, Vol. 72, No. 1. (Mar.,
1982), pp. 47-57
3. Competition in two-sided markets, Rand Journal of Economics Vol. 37, No. 3, autumn 2006,
pp. 668–691
4. D.Dewels, The Theory of Imperfect Competition 139-41(1969)

5. Economic Survey 2006-2007
6. Economy, Vol.93, No.2 (Apr., 1985), 320-345.
7. E.Robinson, Monopoly 74-76 (1941)
8. European Community Treaty; Article 82 and Chapter II
9. Ferguson, James M., Advertising and competition: Theory, Measurement, Fact, Cambridge:
Ballinger, 1974
10. Journal of World Trade, 32 (3), June 1998. Regionalism, Competition Policy and Abuse of
Dominant Position.
11. J. R. Engel, “Introduction: The ethics of sustainable development,” In: J. R. Engel and J. G.
Engel, (eds.): Ethics of environment and development: Global challenge, international
response, (London: Belhaven Press and Tucson: University of Arizona Press, 1990), p. 10-11.
12. Law Review; Predatory Pricing and Related Practices under section 2 of Sherman Act.
13. Petroleum Price Fixation; The Economic Times, 2010
14. Petroleum Pricing in India- Shift from APM to MPDM; Kaushik Ranjan Bandyopadhyay
15. Report of Expert Group on a Viable and Sustainable System of Pricing of Petroleum Products
16. Report of The Expert Group on a Viable and Sustainable System of Pricing of Petroleum
Products, 2010
17. Report of the Group on Deregulation of Marketing of Petroleum Products- Ministry of
Petroleum and Natural Gas.
Page 6
18. R. Mark Isaac; Vernon L. Smith-In Search of Predatory Pricing; The Journal of Political
Harvard Study of Cartel Case Laws in select Jurisdictions- Learning’s for the Competition
Commission of India
19. Scott Campbell- Green Cities, Growing Cities, Just Cities? Urban Planning and the
Contradictions of Sustainable Development ©Journal of the American Planning Association
(summer, 1996).
20. Second Report of Expert Technical Group on Rationalisation of Duty Structure and Phased
Dismantling of APM
21. World Commission on Environment and Development (WCED), Our common future: The
Brundtland report, (Oxford: Oxford University Press, 1987).
STATUES AND GUIDELINES
1. Competition Act 1998, United Kingdom

2. Competition Commission of India Act, 2002; Section 4 (2)
3. European Community Treaty; Article 82 and Chapter II
4. Fair Competition Act, 2002-19
5. Ministry of Petroleum and Natural Gas (MoPNG); Resolution No. P-23015/1/2001-Mkt.

6. Ministry of Petroleum and Natural Gas (MoPNG); Resolution No. P-23015/1/2001-Mkt.;
Clause (2)
7. Ministry of Petroleum and Natural Gas (MoPNG); Resolution No. P-23015/1/2001-Mkt.;
Clause (3)
8. Office of Fair Trading, European Commission, United Kingdom
9. The Clayton Antitrust Act (1914)
Page 7
LIST OF ABBREVIATIONS
1. AIR - All India Reporter

2. Anr - Another
3. APM - Administered Pricing Mechanism
4. BPCL - Bright Petroleum Corporation Ltd.
5. CAT - Competition Appellate Tribunal
6. CCI - Competition Commission of India
7. Co. - Company
8. ETG - Expert Technical Group
9. HPCL - Hexxon Petroleum Corporation Ltd.
10. HSD - High Speed Diesel
11. IOCL - Indoi Oil Corporation Ltd.
12. Ltd - Limited
13. MCD - Municipal Corporation of Delhi
14. MoPNG - Ministry of Petroleum and Natural Gas
15. Mkt. - Market
16. NOMC - National Oil Marketing Companies
17. ONGC - Oil & Natural Gas Commission
18. Ors - Others
19. p - Page
20. PNRGB - Petroleum and Natural Gas Regulatory Board
21. RPL - Retro Petroleum Limited
22. SC - Supreme Court
23. SCA - Service Control Application
24. UOI - Union Of India
25. V. - Versus
Page 8
STATEMENT OF JURISDICTION
The counsel for the Appellant most humbly and respectfully submits to the jurisdiction of this
Supreme Court of Indoi and accepts that the court has the power under Section 53T of the
Competition Act, 2002 to hear the present matter and adjudge accordingly.
Section 53T: Appeal to Supreme Court
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
communication of the decision or order of the Appellate Tribunal to them; Provided that the
Supreme court may, if it is satisfied that the applicant 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.
Page 9
STATEMENT OF FACTS
The Respondent most respectfully and humbly submits as under:
1. That Indoi is a country whose accelerating economic growth has fuelled the demand for
efficient and affordable energy supply hence contributing towards reducing poverty and
improving quality of life.
2. Thus APM was introduced under which some of the petroleum products were sold at a higher
price as compared to others. The surplus generated was used to subsidize other petroleum
products.
3. Soon, APM was dismantled under the recommendations of ETG and private companies were
allowed to market various transportation fuels.
4. Post 2004, the prices of crude oil witnessed steep increase and the Government taking in
consideration the adverse effect of increasing prices on common man subsidized and regulated
prices of HSD. Result of the same, all the NOMC’s suffered huge losses.
5. Retro Petroleum Limited was too authorized to market HSD but while the NOMC’s were
covered under Oil Bonds, the same benefit was not available to RPL.
6. Suffering huge losses, RPL filed a complaint in the CCI against the Government of Indoi and
NOMC’s to which objections were raised that the CCI has no jurisdiction to deal with the
issues and the same falls within PNGRB.
7. After CCI rejected the objections, the NOMC’s and Government of Indoi appealed before CAT
which too further ended up saying that CCI has jurisdiction.
8. Being aggrieved, the appellants moved to Hon’ble Supreme Court of Indoi for justice.
-HENCE THE PRESENT APPEAL-
Page 10
ISSUES FOR CONSIDERATION
i. Whether CCI has the jurisdiction to decide matters relating to abuse of dominant
position and predatory pricing in petroleum products (HSD in the instant case)?
ii. Whether the act of NOMCs to sell HSD at regulated price is anti-competitive?
iii. Whether the Government of Indoi is legally justified to regulate the prices of HSD
after dismantling the APM?
Page 11
SUMMARY OF ARGUMENTS
1. Whether CCI has the jurisdiction to decide matters relating to abuse of dominant
position and predatory pricing in petroleum products (HSD in the instant case)?
The NOMC’s are abusing their dominant position as they are enjoying such an economic
strength that is allowing them to operate in the market without being significantly affected
by competition. Also since the HSD sold by NOMC’s is much cheaper as compared to the
international prices, a large number of consumers depend on it. This not only brings a loss
to the newly private oil marketing companies but also attracts the concept of predatory
pricing.
2. Whether the act of NOMCs to sell HSD at regulated price is anti-competitive?
The act of National Oil Marketing Companies to sell High Speed Diesel at regulated
prices is anti-competitive since the regulated price is much less than that of the
International prices and thus brings a hugh loss to the private oil marketing companies.
3. Whether the Government of Indoi is legally justified to regulate the prices of HSD after
dismantling the APM?
The Government of Indoi is not justified in any sense to regulate the prices of HSD after
Administered Pricing Mechanism has been dismantled. This is because subsidizing High
Speed Diesel and thus funding the Oil companies with oil bonds not only increases
government expenditure but also hinders the sustainable development of the economy. Also
it is not fair on the part of the government to first invite private players to market their
petroleum products and then regulate the prices thus ending in losses to oil companies.
Page 12
WRITTEN SUBMISSION
1. Whether CCI has the jurisdiction to decide matters relating to abuse of dominant position
and predatory pricing in petroleum products (HSD in the instant case)?
It is hereby contended before Hon’ble Court that it is an abuse of dominant position and predatory
pricing in HSD so CCI has jurisdiction to decide this matter.
Section 4(1) of The Competition Act 2002 states that no enterprise or group shall abuse its dominant
position. Therefore it is hereby contended before the Hon’ble Supreme Court of Indoi that CCI has
jurisdiction to decide matters related to abuse of dominant position and predatory pricing. To find
out the abuse of dominant position, it has to determine that there was dominant position:-
1.1. Factors to Determine Dominant Position:

Dominance has been traditionally defined in terms of market share of the enterprise or
group of enterprises concerned. However, a number of other factors play a role in
determining the influence of an enterprise or a group of enterprises in the market 1. These
include:
 market share,
 dependence of consumers on the enterprise;
 market structure and size of the market;
 source of dominant position viz. whether obtained due to statute etc.;
 social costs and obligations and contribution of enterprise enjoying dominant
position to economic development.
Also in similar terms, the conduct may constitute an abuse if it consists of2: directly or indirectly
imposing unfair purchase or selling prices or other unfair trading conditions limiting production,
markets or technical development to the prejudice of consumers applying dissimilar conditions to
1
Competition Act 2002; Section 19(4).
2
European Community Treaty; Article 82 and Chapter II.
Page 13
equivalent transactions with other trading parties, thereby placing them at a competitive
disadvantage making the conclusion of contracts subject to acceptance by the other parties of
supplementary obligations which, by their nature or according to commercial usage, have no
connection with the subject of the contracts.
In this case also, IOCL, BPCL & HPCL are having dominant position as more of consumers are
dependent on these corporations and it has more of social obligations and it contributes more in
the economic development. So they have the capacity to drive market through their capacity in
whichever direction they want. Also their market share is very huge which approximately more
than 50% is. So a layman can too conclude easily that they are in a dominant position.
1.2. Meaning of Abuse of Dominant Position:
The Act defines dominant position (dominance) in terms of a position of strength enjoyed
by an enterprise, in the relevant market in India, which enables it to:
1. Operate independently of the competitive forces prevailing in the Relevant market ;
2. or affect its competitors or consumers or the relevant market in its favour 3.
It is the ability of the enterprise to behave/act independently of the market forces that
determines its dominant position. In a perfectly competitive market no enterprise has
control over the market, especially in the determination of price of the product. However,
perfect market conditions are more of an economic “ideal” than reality. Keeping this in
view, the Act specifies a number of factors that should be taken into account while
determining whether an enterprise is dominant or not.
The European Community Treaty prohibit, in certain circumstances, conduct by one or
more undertakings which amounts to an abuse of a dominant position. The prohibitions
are set out in Article 82:
3
Competition Commission of India Act, 2002; Section 4 (2).
Page 14
It provides that: 'Any abuse by one or more undertakings of a dominant position within
the common market or in a substantial part of it shall be prohibited as incompatible with
the common market in so far as it may affect trade between Member States.' 4
The Chapter II prohibition provides that: '…any conduct on the part of one or more
undertakings which amounts to the abuse of a dominant position in a market is prohibited
if it may affect trade within the United Kingdom.' 5
The tests applied under Article 82 and the Chapter II prohibition has two common
elements: whether an undertaking is dominant in a relevant market; and, if so, whether it
is abusing that dominant position. The prohibition under both Article 82 and the Chapter
II prohibition are on the abuse of the dominant position, not the holding of the position.
In the case of Article 82, the dominant position must be held within the common relevant
market or in a substantial part of it.
Dominance is not considered bad per se but its abuse is. Abuse is stated to occur when an
enterprise or a group of enterprises uses its dominant position in the relevant market in an
exclusionary or/and an exploitative manner. The Act gives an exhaustive list of practices
that shall constitute abuse of dominant position and, therefore, are prohibited. Such
practices shall constitute abuse only when adopted by an enterprise enjoying dominant
position in the relevant market in India. Abuse of dominance is judged in terms of the
specified types of acts committed by a dominant enterprise alone or in concert 6. Such acts
4
Competition Act 1998, United Kingdom.
5
Office of Fair Trading, European Commission, United Kingdom.
6
Under Section 19 of the Competition Act, 2002 (the Act), information was received by the Commission from
Park Place Residents Welfare Association against DLF Home Developers Ltd. DLF Home Developers Ltd. (OP-
1) has abused its dominant position and has imposed highly arbitrary, unfair and unreasonable conditions on the
apartment allottees of the Housing Complex 'the Park Place'. Various Government and statutory authorities have
allotted land and given licenses, permissions and clearances to OP-1 when it is ex-facie clear that the DLF has
violated the provisions of various Statutes including Haryana Apartment Ownership Act, 1983, the Punjab
Scheduled Roads and Controlled Areas (Restriction of Unregulated Development) Act, 1963 and Haryana
Development and Regulation of Urban Areas Rules, 1976. OP-1 has used its position of strength in dictating the
terms by which on the one hand it has excluded its obligations and liabilities and on the other hand put the
apartment allottees in extremely disadvantageous conditions. It shows to what extent DLF has exercised its
Page 15
are prohibited under the law. Any abuse of the type specified in the Act by a dominant
firm shall stand prohibited. Section 4 (2) of the Act specifies that following practices by
a dominant enterprise or group of enterprises abuses directly or indirectly imposing unfair
or discriminatory price in purchase or sale (including predatory price) of goods or
service.
Abuse of Dominant position occurs where a firm holds a position of such economic
strength that allows it to operate in a market without being significantly affected by
competition and it engages in conduct that is likely to impede the development or
maintenance of effective competition7. Also in Jindal Steel Authority Ltd. v. Steel
Authority of India Ltd. it was held SAIL has abused its Dominant Position through the
exclusivity provisions of the MOU which has an effect of foreclosing a substantial part
of the relevant market to competitors8.
dominant position in dealing unfairly with the apartment allottees; DLF Park Place Residents Welfare
Association v. DLF Limited Haryana Urban Development Authority Department of Town and Country
Planning.
7
Fair Competition Act, 2002-19.
8
The information alleges Abuse of Dominant Position by SAIL in violation of Section 4 (1) of the Act. As per
the information, SAIL has entered into an exclusive supply arrangement with Indian Railways (IR) through
Memorandum of Understanding (MOU) dated 1.2.2003. It is alleged that the said MOU result in denial of
market access to JSPL by foreclosing a substantial part of the relevant market. As per the information, the MOU
contains exclusive supply obligations and results in refusal to deal which causes appreciable effect on
competition in the relevant market in India in contravention of Section 3(4) of the Act. As per the information,
with nearly 96% market share, SAIL has a Dominant Position and substantial market share in the market for rails
in India that are compliant with Research Design & Standards Organization (RDSO), Ministry of Railways
specifications. The MOU dated 1.2.2003 between IR and SAIL has the effect of foreclosing substantial part of
the relevant market and has also led to reduction and/or elimination of competition in the relevant market.
Competition is not only in the market but also for a market. While harm to competition in the market is more
visible and open to simple remedies, promotion of competition for the market is more in the realm of (sic) Policy
than competition law enforcement. This is truer when in context of government enterprises. In the instant case, it
is a fact that due to government policy and law, there is no competition in the market of railway service.
Consequently, competition for the market where 1R is a purchaser gets distorted. It is therefore felt that Govt. of
India, MOR and IR should remain highly sensitive to this fact and try to keep their procurement procedure as
competitive as possible wherever IR is the Dominant purchaser so that competition for that relevant market is not
distorted unintentionally; Competition Commission of India, Case No. 11/2009.
Page 16
In particular, competition rules recognize the possible inefficiencies arising from imperfect
Competition. Everybody will agree on the main purpose of competition rules: to prevent anti-
competitive behaviour by controlling collusion, mergers, and abuse of dominant position9. By
dominant position we understand the faculty to create obstacles to efficient competition in its
own market. By abuse of dominant position we understand the use of this faculty. In principle,
competition policy aims at avoiding not market power per se, but the abuse of a dominant
position. The basic idea is that competition law should not penalize efficient firms which have
established a dominant position in their market due to their better performance compared to their
competitors. The contentious issues then are first to determine which behaviours constitute an
‘abuse’ of market power and how to promote competition without penalizing successful
enterprises which would experience a dominant position. However, market share is not a correct
indicator of market power. Crucial to the proper implementation of monopolization law (in
particular assessment of dominance) is a thorough analysis of entry barriers since a firm may not
exercise significant market power over time in the absence of barriers to new entry in the
relevant market.10
The European Commission and the Office of Fair Trading (OFT) found abused a dominant
position in certain cases 11.
Competition law is unconcerned with low pricing by non-dominant firms. For dominant firms
the standard approach is to examine pricing in relation to measures of cost. Thus in the case
9
Journal of World Trade, 32 (3), June 1998. Regionalism, Competition Policy and Abuse of Dominant Position.
10
Barriers to entry can be of three types: artificial (introduced by government regulation or trade associations),
natural (linked to the production technology, scale and scope economies) and strategic (set up by firms to deter
entrants, through over-investment or loyalty bonuses for example).
11
In 2003 the European Commission found that Deutsche Telekom had abused a dominant position by setting the
wholesale price of local loop capacity to competitors at times higher than the retail price to final customers. The
Office of Fair Trading (OFT) found in 2001 that Napp Pharmaceutical Holdings had abused its dominant position in
the supply of sustained relief morphine tablets and capsules by a combination of below-cost pricing in the hospital
segment of the market and excessive pricing in the community segment. Napp sought to justify its below-cost
pricing on the grounds that hospital sales led on to profitable community sales and so were not loss-making. But this
was a circular argument inasmuch as the high margins on community sales depended on the exclusionary low
pricing to hospitals. For this and other reasons, Napp’s appeal against the OFT’s decision failed.
Page 17
known as Tetra Pak II, the ECJ, confirming the approach in the earlier AKZO case, held that:
First, prices below Average Variable Costs12 must always be considered abusive. In such a
case, there is no conceivable economic purpose other than the elimination of a competitor,
since each item produced and sold entails a loss for the undertaking. Secondly, prices below
Average Total Costs13 but above average variable costs are only to be considered abusive if an
intention to eliminate a competitor can be shown.
1.3. Relevant Market:

Dominance has significance for competition only when the relevant market has been
defined. The relevant market means “the market that 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” 14. The Act lays down several factors of
which any one or all shall be taken into account by the Commission while defining the
relevant market.
According to Black’s Law Dictionary15, the product market is that part of the relevant
market that applies to a firm’s particular product by identifying all reasonable substitutes
for the product and by determining whether these substitutes limit the firm’s ability to
affect prices. The relevant geographical market is a market comprising that area in which
the conditions for the supply of goods and services are distinctly homogenous and can be
distinguished from the conditions prevailing in the neighbourhood areas.
12
Variable Cost of a firm refers to the cost that changes when output is changed. Variable cost per unit of output is
Average Variable Cost.
13
Total cost per unit of output, found by dividing total cost by the quantity of output. Average Total Cost (ATC)
indicates the per unit profitability of a profit-maximizing firm.
14
Competition Act, 2002; Section 19(5).
15
Black’s law Dictionary 712 (5th Ed.,1979).
Page 18
The relevant product market16 is defined in terms of substitutability. It is the smallest

set of products (both goods and services) which are substitutable among themselves,
given a small but significant no transitory increase in price (SSNIP). The market for cars,
for example, may consist of separate ‘relevant product markets’ for small cars, mid size
cars, luxury cars etc. as these are not substitutable for each other on a small change in
price. A relevant product in a relevant geographic market is what matters.
"Because the ability of consumers to turn to other suppliers restrains a firm from raising
prices above the competitive level, the relevant market must include all products
"reasonably interchangeable by consumers for the same purposes 17.
Relevant geographic market18 is defined in terms of “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”.
1.4. Predatory Pricing:

The “predatory price” under the Act 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 competition or eliminate the
competitors”19
16
Competition Act 2002; Section 2(r).
17
Rothery Storage & Van Co. v. Atlas Van Lines, Inc., 792 F.2d 210.
18
Competition Act 2002; Section 2(s).
19
Competition Act 2002, Section 4(2)a(ii).
Page 19
Predation is exploitative behaviour and can be indulged in only by enterprise(s) having

dominant position in the concerned relevant market.
1.4.1 The major elements involved in the determination of predatory behaviour

are:
 Establishment of dominant position of the enterprise in the relevant market

 Pricing below cost for the relevant product in the relevant market by the dominant
enterprise [‘Cost’, for this purpose, has been defined in the Competition Commission
of India (Determination of Cost of Production) Regulations, 2009 as notified by the
Commission.]
 Intention to reduce competition or eliminate competitors. This is traditionally known
as the predatory intent test.
The notion embraced by the courts that freedom to engage in trade would defeat the
efforts of any merchant to dominate a market through predatory schemes. 20The classic
predator was a firm of such unequal size and financial strength that a drastic cut of price
in some small parts of territory sustained with monopoly profits earned elsewhere could
eliminate a smaller competitor leaving the predator to raise its prices and recoup its losses
in the market.21
The idea that there is a clear distinction between the prices that is low because of good
competition and the price that is low because of bad predation is well established in
American legal history 22(e.g., Trans-Missouri Freight case and Standard Oil case).23
20
D.Dewels, The Theory of Imperfect Competition 139-41(1969).
21
E.Robinson, Monopoly 74-76 (1941).
22
R. Mark Isaac; Vernon L. Smith-In Search of Predatory Pricing; The Journal of Political Economy, Vol.93, No.2
(Apr., 1985), 320-345.
Page 20
When a monopolist sells at a price at or above average cost, but could earn higher short
run profits at a higher price, element of predation is present. Unless acting irrationally or
out of ignorance, the firm is likely to be charging the lower price in order to preserve or
enhance its market share by deterring rivals 24. It may take two forms:
i. It may permanently charge less than a profit maximizing price in order to deter
entry or to destroy rivals;
ii. It may also take a try to first charge a low price at the time when rivals appear and
then raise the price when the rivals are extinguished.
Now in the present case, the Government of Indoi holds majority share in the public sector
petroleum companies and thus NOMC’s along with the government are providing in the market
HSD below cost price. This is creating a “monopolization” situation. In discussing the legal
issue of “monopolization” we shall assume that such a combination or conspiracy to monopolize
has been established. Because of the presence of that element, we do not have here the
hypothetical case of parties who themselves have not "achieved" monopoly but have had
monopoly "thrust upon" them25. The term “monopolization” has also been defined in American
Tobacco Co. ET AL. v. United States; 328 U.S. 781 (1946) 26
23
U.S. v. Trans-Missouri Freight Association, 168 U.S. 290, 328 (1897); The court suggested that monopolization
may involve strategic price reductions that may drive out of business “ the small dealers and worthy man” Standard
Oil Company of New Jersey v. U.S.; 221 U.S. 1(1911). In the case the court implied that predation has replaced
productive forms of business behaviour. “The very genius for commercial development and organisation which it
would seem was manifested from the beginning soon begot an intent and purpose to exclude others which they were
made with the single conception of advancing the development of business power by usual methods, but which on
the contrary necessarily involve the intent to drive others from the market and thus exclude them from right to trade
and thus accomplishing mastery.
24
Harvard Law Review; Predatory Pricing and Related Practices under section 2 of Sherman Act.
25
United States v. Aluminium Co. of America, 148 F.2d 416, 429.
26
The petitioners are The American Tobacco Company, Liggett & Myers Tobacco Company, R.J. Reynolds
Tobacco Company, American Suppliers, Inc., a subsidiary of American, and certain officials of the respective
companies who are convicted on four counts: (1) conspiracy in restraint of trade, (2) monopolization, (3) attempt to
monopolize, and (4) conspiracy to monopolize.
"Now, the term `monopolize' as used in Section 2 of the Sherman Act, as well as in the last three counts of the
Information, means the joint acquisition or maintenance by the members of a conspiracy formed for that purpose, of
the power to control and dominate interstate trade and commerce in a commodity to such an extent that they are
Page 21
In July 1994, officials at the Department of Justice ("DOJ"), on behalf of the United States, filed
suit against Microsoft 27, charging the company with, inter alia, unlawfully maintaining a
monopoly in the operating system market through anticompetitive terms in its licensing and
software developer agreements.
While merely possessing monopoly power is not itself an antitrust violation 28, it is a necessary
element of a monopolization charge 29. The Supreme Court defines monopoly power as "the
power to control prices or exclude competition." 30 Defining market power as "the ability to cut
back the market's total output and so raise price" where evidence indicates that a firm has in fact
profitably done so, the existence of monopoly power is clear. Because such direct proof is only
rarely available, courts more typically examine market structure in search of circumstantial
evidence of monopoly power. Under this structural approach, monopoly power may be inferred
from a firm's possession of a dominant share of a relevant market that is protected by entry
barriers31.
able, as a group, to exclude actual or potential competitors from the field, accompanied with the intention and
purpose to exercise such power. "The phrase àttempt to monopolize' means the employment of methods, means and
practices which would, if successful, accomplish monopolization, and which, though falling short, nevertheless
approach so close as to create a dangerous probability of it, which methods, means and practices are so employed by
the members of and pursuant to a combination or conspiracy formed for the purpose of such accomplishment.
"An essential element of the illegal monopoly or monopolization charged in this case is the existence of a
combination or conspiracy to acquire and maintain the power to exclude competitors to a substantial extent.
27
United States of America, Appellee, v. Microsoft Corporation, Appellant; 253 F.3d 34 (2001).
28
North eastern Tel. Co. v. AT & T, 651 F.2d 76, 84-85 (2d Cir.1981).
29
Grinnell, 384 U.S. at 570, 86 S.Ct. 1698.
30
United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377 (1956).
31
Rebel Oil Co. v. Atl. Richfield Co., 51 F.3d 1421, 1434 (9th Cir.1995); see also FTC v. Indiana Fed'n of
Dentists, 476 U.S. 447, 460-61, 106 S.Ct. 2009, 90 L.Ed.2d 445 (1986)(using direct proof to show market power in
Sherman Act § 1 unreasonable restraint of trade action).
Page 22
1.5. Duties of Commission

Further Section 18 of the Competition Act, 2002 writes “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”.
Being predatory pricing in present case, a practice carried by the other participants i.e.
IOCL, BPCL, HPCL, having an adverse effect on competition as it limits and restricts the
scope of trade, it provides authority to the commission to eliminate such an activity and to go
into question of such practices.
Also Section 32 of the Act provides that the Commission has the power to inquire into any
agreement, abuse or combination has, or is likely to have, an appreciable adverse effect on
competition in the relevant market in India. The Commission has jurisdiction to Enquire into
Anti-competitive Agreements (e.g. Cartel, bid-rigging, etc.); Enquire into Abuse of dominant
position (e.g. Predatory pricing, etc.); Regulate Combinations (mergers/amalgamation,
acquisition of shares or controls etc.); Undertake Competition Advocacy (including advice to
the Central Government on Competition policy issues.
Taking into account Section 4 of the Competition Act, 2002 it is an abuse as they are selling
petroleum product i.e. HSD at below its cost. This action of IOCL, HPCL and BPCL
amounting to be anti competitive this case can be brought before Commission. Further they
are making unfair trade practices which are reducing competition in the market as they are
adopting such practices against healthy competition. This activity to drive other participants
out of market amounts to abuse of dominant position, so it is under Competition Act and
Commission has jurisdiction to upheld proceedings of the case.
In Shri Neeraj Malhotra v. North Delhi Power Limited, BSES Rajdhani Power Limited and
BSES Yamuna Power Limited32, the matter was referred to the Delhi Electricity Regulatory
Commission (DERC) for its comments on the allegations. The DERC vide its letter dated 30-
32
Competition Commission of India; Case No. 6 of 2009.
Page 23
09-2009 has categorically opined that "matters relating to electricity tariff have to be decided
as per the provisions of Electricity Act, 2003 and DERC Regulations. Accordingly CCI may
not be appropriate forum to deal with such issue. However specific issues alluded to by the
Petitioner accusing the DISCOMS of abuse of their dominant position may be looked into by
the CCI in terms of Competition Act 2002 ". Thus it is amply clear that there is no overlap
between DERC and CCI in terms of jurisdiction of the case. The CCI has accordingly
proceeded in the case to deal with the issues relating to competition.
The mandate of Commission is 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. Sectoral regulators have necessary
technical expertise to determine access, maintain standard, ensure safety and determine tariff.
They set rule of game i.e. entry conditions, technical details, tariff, safety standards and have
direct control on prices, quantity and quality. Thus sectoral regulators focus on the dynamics
of specific sectors, whereas the CCI has a holistic approach and focuses on functioning of the
markets through increasing efficiency through competition. In fact their roles are
complementary and to each other and share the objective of obtaining maximum benefit for
the consumers. In view of the above it is clear that the CCI has all the powers to examine the
issues relating to abuse of dominance by the DISCOMS. The preliminary objection raised by
opposite parties relating to the jurisdiction of the CCI to deal in this matter is accordingly
disposed of.
The NOMC’s are abusing their dominant position as they are enjoying such an economic
strength that is allowing them to operate in the market without being significantly affected by
competition.
Page 24
2. Whether the act of NOMCs to sell HSD at regulated price is anti-competitive?
It is hereby contented before the Hon’ble Supreme Court that selling of the petroleum at the
regulated price is anti-competitive as the private sector due to this regulated price has incurred a
huge loss. In an open market the condition should be same for all the competitors but this
regulation of the price made the situation different which in turn leads to anti-competitive.
2.1.Anti competitive activity: Anti-Competitive activity is merely an activity which lessens

the competition in a market. The origin of barrier concept is in the research custom of
industrial organisational economists during the post World War II period. The perceived
persistence of higher rates of return in some industries than in others was suggestive of
barriers to entry33. Definition given by Joe Bain34 and James Fergusen35 can be
relevant in understanding the concept. Bain defines the conditions of entry as “the context
to which in the long run established firms can elevate their selling prices above the
minimal average costs of production and distribution.
Also Ferguson defines barriers as “factors that make entry unprofitable while permitting
established firms to make profit. Thus Bain and F erguson are using ‘profit’ as a litmus test
for possible outcomes of barriers.
2.2. Anticompetitive Agreements: Section 3(3) of Competition Act, 2002 reads as 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
33
Barriers to Entry, Harold Demsetz; The American Economic Review, Vol. 72, No. 1. (Mar., 1982), pp. 47-57.
34
Bain, Joe S., Industrial Organization, New York: Wiley & Sons,1968.
35
Ferguson, James M., Advertising and competition: Theory, Measurement, Fact, Cambridge: Ballinger, 1974.
Page 25
decision taken by, any association of enterprises or association of persons, including

cartels, engaged in identical or similar trade of goods or provision of services, which
“directly or indirectly determines purchase or sale prices”. There are many examples of
markets in which two or more groups of agents interact via intermediaries or “platforms.”
Surplus is created or destroyed in the case of negative externalities when the groups
interact. Of course, there are countless examples where firms compete to deal with two or
more groups. Any firm is likely to do better if its products appeal to both men and
women36. Several state aids create unequal operating conditions for business like
subsidies37.
Section 3(3) of the Act Competition Act, 2002 deals with the following situations:
(i) The agreements entered into between the enterprises, or
(ii) Any practice carried on by them, or
(iii) Any decision taken by them and
(iv) Containing the terms set out in Clauses (a) to (d) which in substance are fixing
prices, limiting or controlling supply of goods or services or technical development,
sharing the market, and bid-rigging or collusive bidding.
If the above conditions are satisfied, it shall be presumed to have an appreciable adverse
affect on competition. They are deemed to be in per se violation of section 3 and the onus
is on the party to disapprove this claim. The classes of parties to an agreement dealt by
the section 3(3) are; enterprises, associations of enterprises; persons or associations of
persons and they could act in any combination. It is that they are to be an association of
36
Competition in two-sided markets, Rand Journal of Economics Vol. 37, No. 3, autumn 2006, pp. 668–691.
37
Competition law and policy in India prepared by Competition Commission of India.
Page 26
persons or enterprises of services. Where the association of persons or enterprises is

publicly identified as a group with a utility of purpose they are named as cartel 38.
2.3.Price as defined in Section 1(o) of Competition Act, 2002:

"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.
2.4. Cartel:
Section 2 of Competition Act, 2002 define cartel as “"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.”
A cartel can results in the implicit collusion. Firms that engage in explicit collusion are usually
shrewd enough to avoid the documents falling in the hands of anti-trust authorities39. Implicit
collusion, also termed tacit collusion, occurs when the members through their actions show their
willingness to engage in collusive behaviour. An example of tacit collusion is price leadership
where one firm takes the lead of setting a price that will boost profits for the entire industry and
other firms then go along with this price, knowing that they stand to benefit by doing so. With no
formal agreement, prosecuting firms engaging in implicit collusion is difficult and it has been
used as a defence mechanism even by explicit cartels. 40
38
Association of Third Party Administrators v. General Insurers (Public Sector) Association of India.
39
Cartels, collusions among competing firms, harm the social welfare of consumers by restricting competition in
markets. Such market restrictions include entry barriers, market-dividing activities, price fixing, and volume
controlling. The major role of antitrust authorities is to restrain cartels; International Journal Industrial Organization
27 (2009) 145–165; Group size effects on cartel formation and the enforcement power of leniency programs.
40
Study of Cartel Case Laws in select Jurisdictions- Learning’s for the Competition Commission of India.
Page 27
Similarly in the present case all the NOMCs has a leadership in the market of the petroleum and
thus have the lead in the fixing the price. Five months after the dismantling of the administered
price mechanism, oil companies say they are free from government control and can price
petroleum products. But this is yet to lead to any competition between oil companies (IOC,
BPCL, HPCL, IBP), who come together every 15 days to fix the prices of petrol and diesel all
over the country. Responding to questions about the fixing of petroleum product prices, the top
management of Bharat Petroleum (BPCL) said the Indian market was not mature enough for
differential pricing.41
This article from the newspaper of India represents the same condition as in the given case and
show how the price regulation could not let market to be in the competitive structure. Similarly
in this case the regulation of the price by NOMCs leads to the cartel formation.
In the case of Union of India v. Hindustan Development Corporation and Others 42 , it was
stated that “The cartel is an association of producers who by agreement among themselves
attempt to control production, sale and prices of the product to obtain a monopoly in any
particular industry or commodity. Analysing the object of formation of a cartel in other words, it
amounts to an unfair trade practice which is not in the public interest. The intention to acquire
monopoly power can be spelt out from formation of such a cartel by some of the producers.”
The most common practice undertaken by cartels is price-fixing. This is the term generically
applied to a wide variety of concerted actions taken by competitors, which have a direct effect on
price. The simplest form is an agreement on the price or prices to be charged to some or all
customers. In addition to simple agreements on what price to charge, the following are also
considered price-fixing:
 Agreement on price increase;
 Agreement on a standard formula, according to which prices will be computed;
41
Economics Times,27 september,2002.
42
(1993)3 SCC 499.
Page 28
 Agreement to maintain a fixed ratio between the prices of competing but non identical
products;
 Agreement to eliminate discounts or to establish uniform discounts;
 Agreement on credit terms that will be extended to customers;
 Agreement to remove products offered at low prices from the market so as to limit
supply and keep prices high;
 Agreement not to reduce prices without notifying other cartel members;
 Agreement to adhere to published prices;
 Agreement not to sell unless agreed price terms are met; and
 Agreement to use a uniform price as starting point for negotiations.
On the other hand, a price-fixing conspiracy does not necessarily involve an express
agreement, oral or written. It is sufficient that a concert of action is contemplated and that
the defendants conform to the arrangement.
The fixing of prices by one member of a group pursuant to express delegation, acquiescence, or
understanding is just as illegal as the fixing of prices by direct joint action. A price-fixing
combination is illegal even though the prices are fixed only by one member and without
consultation with the others 43. Transportation fuel including High Speed Diesel (HSD) was
being marketed by Indoi Oil Corporation Ltd. (IOCL), Hexxon Petroleum Corporation Ltd.
(HPCL), and Bright Petroleum Corporation Ltd. (BPCL), hereinafter referred collectively as
National Oil Marketing Companies (NOMCs) and Government of Indoi holds Majority shares
in it. NOMC formation acted nothing but like a Cartel and thus enjoyed its dominant position
over others.
2.5. Predatory price44: The “predatory price” under the Act means “the sale of goods or
provision of services, at a price which is below the cost, as may be determined by
43
UOI V Hindustan Development Corporation, (1993) 3 SCC 499.
44
Competition Act, 2002; Section 4 (Explanation).
Page 29
regulations, of production of the goods or provision of services, with a view to reduce

competition or eliminate the competitors” Predation is exploitative behaviour and can be
indulged in only by enterprise(s) having dominant position in the concerned relevant
market.
The major elements involved in the determination of predatory behaviour are:
 Establishment of dominant position of the enterprise in the relevant market.

 Pricing below cost for the relevant product in the relevant market by the dominant
enterprise [‘Cost’, for this purpose, has been defined in the Competition Commission
of India (Determination of Cost of Production) Regulations, 2009 as notified by the
Commission.]
 Intention to reduce competition or eliminate competitors. This is traditionally known
as the predatory intent test.
The intention is very necessary element of the predatory pricing. Predatory Intention 45 means
that alleged price discriminator must have at least sacrificed present revenues for purpose of
driving competitor out of market with hone of recouping losses through subsequent higher
prices46.
A barrier to competitors may arise from the superior efficiency of the existing firms. A prise that
is below marginal cost is said to be predatory whereas a prise above or equal to marginal cost is
not47.
Kirti Parikh report48 also recommended that “We have examined the implications of increase
in retail price of diesel on various groups of consumers and do not find any compelling reason to
45
Supra ibid
46
Blank’s law Dictionary, 7th Edition.
47
Consider the situation in which milk man in order to attract potential consumers, delivers milk to new customers
below the marginal cost. In another example, a more difficult case, consider a firm that advertises its products but
sells at a price below cost for a month or two, or even longer, in the hope that buyers at the low price will so like the
product that they will return to buy later at a higher price. In both the situations, the correct price is approximately
the discounted value of the future higher price. That is the objective of promotional selling;
Page 30
subsidize them. Therefore, we recommend the price of diesel should also be market determined
both at the refinery gate and at the retail level.”
Here in this case, though the expert group advised to dismantle the APM though price is being
regulated. Seeing the circumstances of the Indoi where the consumption of the petroleum
products was increasing by 5% every year it become now necessary for the government to take
some action in order to decrease the consumption level. They must support sustainable
development of the resources like petroleum product. This type of the step would be beneficial
for the public. But government instead of taking some positive action in that step they reduced
the price of the petroleum. This shows that the only intention behind regulation of the price is to
reduce the competition from the market.
Indian Oil Corporation Ltd., Bharat Petroleum Corporation Ltd. and others. v. Reliance
Industries Ltd. and Ors.49 was a case where the grievance of the complainants is that the
Appellants are indulging in a predatory pricing of transportation fuels like MS and HSD which
can be described as a restrictive/unfair trade practice. Therefore, the complainants approached
the Petroleum and Natural Gas Regulatory Board to put an end to the unfair competition being
meted out to it by the entities. Further, as per Section 2(x) of the Petroleum and Natural Gas
Regulatory Board, 2006, it is only the entities which can fix the price and not the Central
Government. Therefore, the Central Government cannot fix the prices under the garb of a policy
which is violative of Section 2(x) of the Act.
But here in this case the prices are still regulated by the MOPNG but according to the above
decision of the court the prices must not be regulated and such regulation of the price will be
consider thus as unfair trade practise.
48
Report of Expert Group on a Viable and Sustainable System of Pricing of Petroleum Products.
49
2009ELR(APTEL)954.
Page 31
Also in Steel Authority of India Ltd V CCI 50, Jindal Steel & Power Limited that SAIL had
abused its dominant position in the market and deprived others of fair competition and therefore,
acted contrary to Section 3 (4) CA [anti-competitive agreements] and Section 4 (1) CA [abuse of
dominant position]. The CCI formed the opinion that prima facie case existed against SAIL.
Similarly here in the present case NOMCs have abused the dominant position and deprived other
by fair trade practise which is in tern leads to an anti-competitive activity. In the present case
also the action of the NOMCs prima-facie seems as anti-competitive.
In Kshitij Ranjan v. Indian Newspaper Society51, it was decided that Competition law is a
very recent Act in India and, thus, we do not have precedence by way of judicial decisions but
elsewhere the courts have interpreted per se illegal practices as those, which are inherently
anti-competitive that they will be judged illegal prima facie and no rule of reason would be
applied to the same. Per se illegal agreements are those, which are found unreasonable and are
anti-competitive that they are deemed illegal without any possible justification. It has been
stated that per se illegal as those that have such predictable and pernicious anti-competitive
50
(2010) 10 SCC 744; The facts in brief are that Jindal Steel & Power Limited invoked the provisions of Section 19
read with Section 26 (1) of the Competition Act, 2002 by providing information to the CCI alleging that the
Petitioner SAIL had inter alia entered into an exclusive supply agreement with Indian Railways for supply of long
rails. JSPL alleged that SAIL had abused its dominant position in the market and deprived others of fair competition
and therefore, acted contrary to Section 3 (4) CA [anti-competitive agreements] and Section 4 (1) CA [abuse of
dominant position]. CCI took on record the affidavit filed by JSPL. SAIL requested extension of time to file its
comments but this prayer was declined by the CCI by the same order dated 8 th December 2009. The CCI formed
the opinion that prima facie case existed against SAIL. Consequently, the CCI directed the Director General to
conduct an inquiry into the complaint. SAIL filed an interim reply before the CCI along with an application seeking
hearing before any interim order was passed by the CCI.
51
Thus, as per the provisions of section 3 (3) of the Act there are three categories, viz agreement entered into,
practices carried on, and/or decision taken by an enterprise or enterprises or a person or persons or between
enterprises or between a person or persons which has resulted into price fixing or other terms or conditions of
sale, limiting and restricting production or output or provision of services or involving collusion in other areas,
such as market and customer allocation, or involving in bid rigging or collusive bidding, as defined under section
(a) to (d) of section 3 of the Act are ab initio or per se anti-competitive.
Page 32
effects and have limited potential for pro-competitive effect. Restrictions of competition by
object are those that by their very nature have the potential of restricting competition. These
are restrictions, which have a high potential of negative effects on competition that is
unnecessary to demonstrate any actual effects on the market. Restrictions by object such as
price fixing and market sharing reduce output and raise prices, leading to misallocation of
resources, because the goods and services as demanded by the consumers are not produced.
Also in Mahindra and Mahindra Limited v Union of India52, the Supreme Court has stated that
there may be trade practices which are such that by their inherent nature and inevitable effect,
they necessarily impair competition and in case of such trade practices, it would not be necessary
to consider any other facts or circumstances for they would be per se restrictive trade practices.
Similarly here in this case we should not bother to look into other circumstances but the act of
the NOMCs to sell the HSD at the regulated price is unfair trade practise and thus is anti-
competitive.
As by the fact it is clear that the after dismantling APM government call private sector into the
market of petroleum and being private sector their main motive is profit maximization but by the
regulated price they are not getting the benefit. Being public sector NOMCs are getting the
compensation through oil bonds but this benefit is also not available to the RPL. They are thus
only incurring loss. Thus discrimination in a market is anti-competitive.
In an open market the price must be market determined and if it is regulated by the government
than they must compensate all the sectors who are incurring loss. But here in the present case the
compensation is only given to the public sector which an anti-competitive practise.
52
AIR 1979 SC 798.
Page 33
Thus the act of National Oil Marketing Companies to sell High Speed Diesel at regulated
prices is anti-competitive since the regulated price is much less than that of the International
prices and thus brings a huge loss to the private oil marketing companies. Thus under the
provision of the Competition Act, 2002 the act of the NOMCs is anti-competitive.
Page 34
3. Whether the Government of Indoi is legally justified to regulate the prices of HSD after
dismantling the APM?
It is hereby contended that Government of Indoi is not legally justified to regulate the prices
of HSD after dismantling of Administered Pricing Mechanism as it is not fair on its part to
first invite the private players i.e. the private oil companies to market HSD in Indoi and then
regulate the market prices53.
The Ministry of Petroleum and Natural Gas constituted an Expert Technical Group (ETG) in
June’96 to examine the impact on various sectors at different level of duty structure in case of
dismantling of Administered Pricing Mechanism (APM) as recommended by the R-Group.
The first Interim Report had made recommendations on tariffs on capital goods which were
implemented in a modified manner.
3.1. Pressure on Resources:
 As per the available information, upto 30 th September 2000, 114 parties have imported
about 6 million tonnes of Kerosene under the Parallel Marketing Scheme. Similarly,
upto 30th September 2000, 24 parties have imported about 0.8 million tonnes of LPG.
 MS/HSD retail sales cater to India’s largest consumer segment with highest
consumption of petroleum products for the growing automobile population consisting of
heavy transport, light commercial vehicles, cars, two/three wheelers as well as the rural
and agricultural sector for operation of tractors, irrigation pump sets, thrashers etc. The
sales of MS and HSD during 1999-00 were about 5.9 million metric tonnes (MMT) and
39.3 MMT respectively out of which, the retail sales of MS and HSD were about 5.7
MMT and 29.6 MMT, about 97% and 75% of the total sales of MS and HSD
53
Resolution No. P-23015/1/2001-Mkt; clause 3.
Page 35
respectively. Combined retail sales of MS and HSD accounted for about 78% of total
sales of MS and HSD during 1999-200054.
Thus ewe can assume that, with the increase in demand, the consumption level of the
resources increases i.e. their rate of depletion increases.
1.1.1 In previous times, sustainability of humankind was taken for granted and did
not appear as an explicit goal. It certainly was an implicit goal: no human
society has ever consciously promoted its own unsustainability. Global
developments now focus attention on sustainability as an explicit goal. But
the concept has to be translated into the practical dimensions of the real
world to make it operational. We must be able to recognize the presence or
absence of sustainability, or of threats to sustainability. To sustain means “to
maintain; keep in existence; keep going; prolong. One of the most
commonly cited definitions stresses the economic aspects by defining
sustainable development as “economic development that meets the needs of
the present generation without compromising the ability of future
generations to meet their own needs 55. Another takes a broader view by
defining sustainable development as “the kind of human activity that
nourishes and perpetuates the historical fulfilment of the whole community
54
India’s imports of oil are increasing. Our import dependence has reached 80 per cent and is likely to keep
growing. At the same time 2008 saw an unprecedented rise in oil price on the world market. Oil price volatility has
also increased. Though future oil prices are difficult to predict, they are generally expected to rise. These policies
had a number of consequences. They put stress on government’s finances. Rather, as prices remained low due to
government subsidiary measure, and personal incomes rose, the demand for petroleum products such as petrol and
diesel recorded double digit growth; Report of The Expert Group on a Viable and Sustainable System of Pricing
of Petroleum Products, 2010. Also Deutsche Bank in a report on the budget said it does not think the government
can bring down the fuel subsidies as planned. “The government of India attempted fiscal consolidation last year but
failed as its assumptions were faulty from the beginning; this year’s parameters are more realistic but with high oil
prices and below-trend growth likely to persist, reducing the deficit would be no less onerous,” it said. Thus this
statement of the Bank in the report proved that it is necessary to reduce the subsidy on the oils and other petroleum
if we want to have fewer deficits in our next financial year.
55
World Commission on Environment and Development (WCED), Our common future: The Brundtland report,
(Oxford: Oxford University Press, 1987).
Page 36
of life on earth56. An equitable, environmentally and physically sustainable

society that exploits the environment at the maximum sustainable rate would
still be psychologically and culturally unsustainable. A just and fair society,
for example, is likely to be more securely sustainable than a materially
sustainable brutal economy.
3.1.2. Similarly, though planners often see themselves as the defenders of the poor
and of socio-economic equality, their actions over the profession's history
have often belied that self-image (Harvey 1985). Planners' efforts with
downtown redevelopment, freeway planning, public-private partnerships,
enterprise zones, smokestack-chasing and other economic development
strategies don't easily add up to equity planning. At best, the planner has
taken an ambivalent stance between the goals of economic growth and
economic justice. In short, the planner must reconcile not two, but at least
three conflicting interests: to "grow" the economy, distribute this growth
fairly, and in the process not degrade the ecosystem.57 Thus it is important
to use the resources sustainably keeping in view that the future generations
may also need them.
In the present case, Indoi is the world’s fifth largest consumer of crude oil and
petroleum products and also its product consumption is increasing every year
by 5 percent. Though it will be counted as a good deed of the government to
fulfil all the petroleum requirements of the people but government should not
take it into duty to fulfil all the non-lasting demands.
3.1.3. One of the main Causes of Financial Crises is the Increase in Subsidies by
the government. The government has been providing subsidies on a large
56
J. R. Engel, “Introduction: The ethics of sustainable development,” In: J. R. Engel and J. G. Engel, (eds.): Ethics
of environment and development: Global challenge, international response, (London: Belhaven Press and Tucson:
University of Arizona Press, 1990), p. 10-11.
57
Scott Campbell- Green Cities, Growing Cities, Just Cities? Urban Planning and the Contradictions of
Sustainable Development ©Journal of the American Planning Association (summer, 1996).
Page 37
number of items such as fertilizers, exports, food items, etc. This has
resulted in a fiscal imbalance. The major subsidies provided by the Central
Government of India has Increased over the years resulting in Fiscal
imbalance. In the year 1990-91, subsidies provided by the government were
worth Rs. 9,581 Crores while the difference went too large when the
calculated value of subsidies provided by the government was worth Rs.
44,792 Crores58.
It is not a difficult conclusion to infer that if government will go on financing
the non-lasting demands of the people, it will lead the government left with
financial trouble.
Need for Shift from APM to Market Prices59: A Committee suggested that the entire oil
sector (upstream, downstream and marketing) should be completely opened up through the
following steps60;
 Introduction of market determined pricing mechanism (MDPM).
 Removing all restrictions on imports and exports.
 Removing restrictions on sourcing and type of crude and product pattern.
 Allowing oil companies to decide on development of infrastructure, mode of
transportation, the selection of marketing areas, appointment of dealers/distributors, the
amount of commission payable to intermediaries and the sales volume, purely on
commercial considerations.
 The hydrocarbon sector should be totally de-regulated at one go by removing subsidies;
wherever products need to be subsidized, Central and State Governments should directly
58
Economic Survey 2006-2007.
59
Report of the Group on Deregulation of Marketing of Petroleum Products- Ministry of Petroleum and Natural
Gas.
60
The Government in November 1994 had set up an industry study group under the chairmanship of Mr. U.
Sundararajan, the then Chairman and Managing Director, BPCL (Bharat Petroleum Corporation Limited) to prepare
the blueprint of the deregulation and tariff reform that was required in the oil sector and provide a framework for the
development of Market Determined Pricing Mechanism (MDPM).
Page 38
disburse subsidies and oil companies should be permitted to sell all products at market
related rates
The report of this study group provided essential inputs for the Strategic Planning Group on
Restructuring of the Indian oil industry (known as ‘R’ Group) headed by Dr. Vijay Kelkar, the then
Secretary, Ministry of Petroleum and Natural Gas. The ‘R’ Group submitted its report in September,
1996, underscoring on dismantling of APM for the following primary reasons:
 Cost-plus compensation did not provide adequate incentive for cost reduction leading to
inefficiencies
 Absence of internally competitive petroleum sector
 The entry of private sector would inflate the costs under cost-plus formula which the
consumers would have to bear
 Wide distortion in consumer prices on account of subsidies and cross-subsidies
 Adverse impact on oil companies due to huge deficits in Oil Pool Accounts as price revisions
were untimely
Based on the recommendations of R-Group and the second report of ETG on Rationalisation of
Duty Structure and Phased Dismantling of APM, the Government in November 1997, decided to
dismantle the APM in phases starting from 1.4.1998. Full deregulation is envisaged by March
2002. A copy of the Government Resolution containing the decisions taken in November 1997
is at Annexure-II. The main actions already taken are:
 The cost plus formula for indigenous crude oil production by ONGC and Oil has been
withdrawn. Price being paid is linked to the prices of crude oil in the international
market and would gradually move to international price.
 The system of retention pricing for the refineries has been abolished. Refinery gate
prices of controlled products (MS, HSD, PDS Kerosene, domestic LPG and ATF) are
being fixed on the principles of import parity pricing.
 Consumer prices of Motor Spirit (MS), High Speed Diesel (HSD), Kerosene for
Public Distribution (PDS Kerosene), Domestic LPG and Aviation Turbine Fuel (ATF)
remain under the Administered Pricing Mechanism. Prices of other products have
been decontrolled and are now fixed by oil companies at market determined rates 61.
61
Second Report of Expert Technical Group on Rationalisation of Duty Structure and Phased Dismantling of APM
Page 39
 Cost plus formula for shipping of crude oil has been done away with and market
determined rates are being paid.
3.2. Views of Oil Marketing Companies and Private Refineries:
 Indian Oil Corporation made a presentation to the Group on the grant of marketing
rights of controlled petroleum products to Stand-alone Refineries wherein,
representatives of other PSU oil companies were also present.
 PSU oil marketing companies expressed that they should be provided level playing
field vis-à-vis the private sector when the latter is given marketing rights of the
controlled products. They also stated that marketing margin should be uniform for all
oil companies including the new entrants to market products like ATF, SKO, LPG etc.
in un-viable markets like hilly areas including J&K, North-Eastern States, etc. PSU
oil companies further felt that they be allowed to import controlled products, as may
be necessary, to meet the demand of their existing customers, in case their own
product availability fell short of their marketing requirements. Currently the sharing
of facilities among marketing PSUs is on a token charge basis. They mentioned that
same principle could not apply to new entrants. They also suggested that their existing
retail outlets should be protected against take over by new entrants through suitable
legislation. They also opined that new entrants should be subjected to the laid down
system by the Government in respect of Marketing Plan, dealer / distribution selection
procedure, reservation etc. as applicable for PSU oil marketing companies. PSU oil
companies added that they should get more freedom in setting up of reseller network
so that they were not put to any disadvantage vis-à-vis the new entrants.
 Retro Petroleum Limited made a presentation before the Group and emphasized that
‘refining’ was only a means to achieve the end goal i.e. marketing. It was
highlighted that refinery margins were generally only 1/8 th of marketing margins.
RPL stated that if they did not get marketing rights they would not be on equal footing
with others for negotiating the marketing of their products. In the past when Assam
Page 40
Oil Division (AOD) started marketing and, more recently when IBP started marketing
LPG, their market share came out of the existing share of the other marketing
companies, RPL added. RPL was looking for level playing field i.e, common carrier
principle for use of pipelines, jetties, hydrants, etc. besides freedom for selecting the
best distribution channels/ locations. RPL’s market share could be based on its
refinery capacity, which was about 24%. RPL wanted marketing rights immediately
so that when the transition period is over and full deregulation sets in, they would be
well prepared for the same as development of required infrastructure would take time.
 Essar Oil Limited (EOL) is setting up a Refinery at Vadinar, Gujarat with a capacity
of 10.5 MMTPA at an investment of about Rs.8000 crore. The refinery is expected to
be completed by December 2001. EOL, in its presentation, stated that they would
meet the criteria for marketing rights of transportation fuels laid down by Govt. as
they had already invested substantial amount of money in the refinery project. They
further mentioned that they had identified 1700 locations all over India for setting up
of retail outlets and that they should be permitted to set up these outlets immediately
so that EOL were geared up to market part of their own production through these retail
outlets soon after commissioning of the refinery. EOL also mentioned that they were
prepared to set up retail outlets in economically backward and other difficult areas as
per Govt. policy. EOL added that they would be setting up the retail outlets with their
own funds and, therefore, proposed to be treated at par with similar dealers of the oil
companies who put up the retail outlets with their own funds. Accordingly, during the
transition period they could be paid only the dealer’s commission and retail pump
outlet (RPO) charges.
Focusing in the above stated personal views of the private oil companies, we can infer
that all of them are having only one goal i.e. to expand their business and hence
increase their productivity level. But there is a hurdle in their path and that is APM.
If APM will be dismantled, this in turn will increase the competition in the market and
thus the consumers will be facilitated more.
Page 41
3.3. Need for Competition: It has been pointed out in EZTG reports as well as in R-
Group report and more recently in the Hydrocarbon Vision-2025 that India’s
Petroleum Sector should move towards market economy, where the prices will be
determined by the market forces. The Gazette Notification dated November 24, 1997
detailing the phasing of dismantling programme of APM, among others, includes the
following provision:
 “Investments in the refining sector will be encouraged by providing reasonable
tariff protection and making marketing rights for transportation fuels viz. MS, HSD
and ATF conditional on owning and operating refineries with an investment of at
least Rs. 2000 crores or oil exploration and production companies producing at
least three million tonnes of crude By authorizing private sector to market
transportation fuels, the investment in oil exploration & production, refining and
marketing infrastructure is expected to get the desired boost 62. The entry of the
private sector in marketing of controlled products which has been the monopoly of
the public sector for the last nearly 25 years will result in the desired competition in
the market place, which will lead to several measures towards improvement of
efficiencies, cutting cost, improving the quality of products and services etc. The
ultimate advantage of competition will accrue to the consumer, as he will have
greater choice of products and services at competitive prices.
 Regarding authorizing private sector to market transportation fuels, Report of the
Group on India Hydrocarbon Vision – 2025 states as under: “Make marketing
rights for transportation fuels conditional to a company investing or proposing to
invest Rs. 2000 crores in E&P, refining, pipelines or terminals 63. Such investment
62
Ministry of Petroleum and Natural Gas (MoPNG); Resolution No. P-23015/1/2001-Mkt.
63
Resolution No. P-23015/1/2001-Mkt.; Clause (2).
Page 42
should be towards additionality of assets and in the form of equity, equity like
instruments or debt with recourse to the company”.
The Hydrocarbon Vision – 2025 stresses the need for allowing entry of new
players into the marketing sector through transparent and clear entry criteria and to
provide a level playing field for new entrants 64. It also stresses the need to set up
mechanism to enable new entrants to establish own distribution network for
marketing without encroaching on the retail network of existing marketing
companies.
3.4. Concerns of private sector companies 65
 If private sector companies did not have authorization for marketing transportation
fuels, they would not be on equal footing with others for negotiating the marketing of
their products.
 Absence of authorization of marketing would deny the players a fair share of the more
profitable domestic market.
3.5. Marketing of controlled petroleum products by private sector companies:
 As per the present Policy of the Government, marketing of controlled petroleum

products would continue to be regulated until the APM is fully dismantled. As per the
phased programme of dismantling of APM announced by the Government, ATF is to be
de-regulated during 2000-01. However, as per the existing policy, during the transition
period i.e. upto March 2002, the prices of Domestic LPG (marketing by PSUs), MS,
SKO for Public Distribution and HSD would continue to be fixed by the Government.
 Therefore, as per the present policy, private sector companies would be able to have
authorization for marketing of controlled products only after APM is dismantled,
64
Resolution No. P-23015/1/2001-Mkt.; Clause (3)
65
Report of the Group on Deregulation of Marketing of Petroleum Products- Ministry of Petroleum and Natural
Gas.
Page 43
provided they meet the laid down criteria by the Government for Need for Private sector
participation.
 The Strategic Planning Group on Restructuring of Oil Industry (R-Group) in its
report had observed that in keeping with the changes taking place in the Indian
economy, the hydrocarbons industry also needs to be liberalized with easier entry for a
range of actors that could contribute to its development in keeping with the national
objectives. This will include the private sector in India as well as international
companies that could do business in this country’s hydrocarbon sector. One of the most
important perspectives is the need to introduce competition, domestic and international,
in the hydrocarbon sector, upstream, mid-stream and downstream. Competitive markets
and consequential market determined prices will help to mobile the massive resources
for investment required and also deploy them effectively. The Administered Pricing
Mechanism (APM) had worked satisfactorily until recently and helped the public sector
oil companies to grow under a protective environment. However, APM had become a
serious handicap in securing oil supplies for future. In order to achieve the primary
objective of securing oil supplies to meet the future growing demand, it would be
absolutely necessary to move towards a market-driven price mechanism and to free the
petroleum sector from APM. Accordingly, the Government decided on 1.9.1997 to
dismantle APM by introducing reforms in a phased manner based on the
recommendations of the R-Group.
3.6. Marketing of Transportation Fuels by private parties in post deregulation period:
 The Group recommends that private sector companies which fulfill the conditions
stipulated by the Government may be authorized to market transportation fuels.
 The Group feels that the requirement of Rs. 2000 crores of actual or proposed
investment be applicable to the total of the various investments / proposed investments
by a private party in the activities of Exploration and Production (E&P), Refining,
Pipelines or Terminals and not be restricted to any single activity.
Page 44
3.6.2. Before March 28, 2002, the marketing and pricing of petroleum products
including transportation fuels, namely, motor spirit (MS) and high-speed
diesel (HSD), were controlled by the government under a mechanism known
as administered price mechanism (APM). The APM was dismantled by a
notification dated March 28, 2002, under Section 3 of the Essential
Commodities Act, 1955. Then, in 2006, the PNGRB came into existence. As
a result of these two events, the theoretical position obtaining since October
1, 2006, is that all entities are free to price their products. The above issues
have been examined brilliantly in a landmark judgment, dated October 5,
2009, by the Appellate Tribunal for Electricity, in Appeal No. 50 of 2009.
The judgment, either directly or indirectly, establishes the following
positions:
Sections 11(a), 12 and 25 of the PNGRB Act, 2006, together give wide amplitude to
its duties and powers to foster fair trade and fair competition among the entities. The
dismantling of the APM by the notification dated March 28, 2002, was a policy
decision that has not been reversed by another policy decision. The government,
therefore, cannot fix prices under the garb of policy. Section 2(x) of the Act
specifically provides that it is only the entities that can fix the price and not the
government. The above power given to the entities to fix the price cannot be usurped
by the government66.
IBP Co. Limited Vs Nand Kishore Bajpai and Ors67 was a case similar to it. Till 31st March,
2002 only Public Sector Oil Companies were entitled to market petroleum products in retail.
With effect from 1st April, 2002 Administered Price Mechanism (APM for short) was to be
dismantled. Minister for Petroleum and Natural Gases chaired a meeting on 8th October, 1999 to
66
Petroleum Price Fixation; The Economic Times, 2010.
67
147(2008) DLT 764.
Page 45
frame and ensure that Public Sector Oil companies were able to meet the challenge and face
competition after dismantling of APM with effect from 1st April, 2002. It was noticed on
dismantling of the APM, Dealer Selection Board would be dissolved and certain amount of
freedom had to be given to the oil companies to frame and follow their own policies to be
competitive.
Thus a notification was issued by the Ministry of Petroleum and Natural Gas and addressed to oil
companies and granted commercial freedom to the public sector oil marketing companies
(OMCs), post Administered Price Mechanism regime in the petroleum sector, it was decided by
this Ministry vide its letter of even number dated 9.9.2003 that the OMCs would formulate their
own policy and procedure for operating those retail outlets, where sites had been procured and
facilities created, or which had been decommissioned because of termination of dealerships, on
Company-Owned-Company-Operated (COCO)/ad hoc basis till regular dealers were appointed.
However, this could not be formulated by the OMCs uniformly on industry basis so far. The
matter has been in consideration for a long time and a number of discussions were held in the
Ministry, at different levels, with the OMCs.
In another case, the petitioner challenged the dismantling of the APM as it results in the rise in
the price of the petroleum products within fortnight even when the international market is at
its low. But the petition is dismissed by the court as the APM had already been dismantled by the
notice so rise in the price of petroleum is justified. The price of furnace oil was decontrolled
from that date and the oil companies were allowed to fix the price based on market
considerations68.
Petroleum products are vital inputs to key industries. With the opening up of the economy to
international competition, the user industries could become competitive only if the inputs are
made available at market determined competitive prices and not at prices fixed by the
government. Administration of APM was becoming increasingly difficult with the partial
opening up of the sector allowing private sector refineries. The dismantling was carried out in
phases over four years, and was along the lines suggested by the Expert Technical Group (ETG),
which had been appointed earlier to recommend on the process of dismantling. The ETG
68
Wool Worth (India) Ltd. and Anr. Vs. Union of India (UOI) and Ors.
Page 46
recommended complete dismantling of the APM in a phased manner over 4 to 5 years, beginning
from 1 October 1997, and ushering in a market determined pricing mechanism. The dismantling
primarily involved withdrawal of cost plus formula, abolition of retention prices and movement
towards market driven prices, decanalisation of imports and exports. 69
Thus, the Government of Indoi is not justified in any sense by regulating the prices of HSD after
Administered Pricing Mechanism has been dismantled. This is because subsidizing High Speed
Diesel and thus funding the Oil companies with oil bonds not only increases government
expenditure but also hinders the sustainable development of the economy.
69
Petroleum Pricing in India- Shift from APM to MPDM; Kaushik Ranjan Bandyopadhyay.
Page 47
PRAYER FOR RELIEF
Wherefore in the light of issues raised, arguments advanced, reasons given and authorities cited,
Retro Petroleum Ltd. humbly submits that the Hon’ble Court may be pleased to adjudge and
declare that:
 NOMCs are abusing their dominant position; hence CCI has jurisdiction to adjudicate
upon the case.
 Act of NOMCs to sell HSD at regulated price is anti competitive; so it would be
justifiable to impose stay on such an activities.
 Regulation of prices of HSD by Government of Indoi is not legally and morally justified;
as it forbids equal opportunity in right to trade under Art. 14 and 19 of the Constitution.
And any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
equity and good conscience.
-- All of which is most humbly and respectfully submitted—
Counsels on behalf of Respondents
Page 48

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TEAM CODE – T 10

APPEAL NO……………………………. / 2012

Under Appellate Jurisdiction

Hexxon Petroleum Corporation Ltd………………………………................... Appellant 2

Bright Petroleum Corporation Ltd.………………………………………….… Appellant 3

Retro Petroleum Ltd........................................................................................ Respondent

-: Memorial on Behalf of the Respondent-

6.1.1 Factors to determine Dominant Position.

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

6.3.1 Pressure on Resources.

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

CASE LAWS CITATION/PAGE

2. Association of Third Party Administrators v. General Insurers (Public Sector) Association

of India; Case No. 49/2010 (CCI).....................................................................................26

Development Authority Department of Town and Country Planning; 2011CompLR490

4. FTC v. Indiana Fed'n of Dentists; 476 U.S. 447, 460-61...................................................22

Industries Ltd. and Ors; 2009ELR(APTEL)954...............................................................31

Case No. 11/2009..............................................................................................................16

8. Kshitij Ranjan v. Indian Newspaper Society; Case No. 34/2011(CCI)...............................32

9. Mahindra and Mahindra Limited v Union of India; AIR 1979 SC 798............................32

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

14. Standard Oil Company of New Jersey v. U.S;221 U.S. 1(1911).........................................20

15. Steel Authority of India Ltd V CCI; (2010) 10 SCC 744....................................................16

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

ARTICLES AND REPORTS

4. D.Dewels, The Theory of Imperfect Competition 139-41(1969)

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

STATUES AND GUIDELINES

1. Competition Act 1998, United Kingdom

4. Fair Competition Act, 2002-19

5. Ministry of Petroleum and Natural Gas (MoPNG); Resolution No. P-23015/1/2001-Mkt.

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

1. AIR - All India Reporter

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

Section 53T: Appeal to Supreme Court

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

The Respondent most respectfully and humbly submits as under:

-HENCE THE PRESENT APPEAL-

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

ISSUES FOR CONSIDERATION

after dismantling the APM?

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

2. Whether the act of NOMCs to sell HSD at regulated price is anti-competitive?

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

1.1. Factors to Determine Dominant Position:

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

1.2. Meaning of Abuse of Dominant Position:

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

1.3. Relevant Market:

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

The relevant product market16 is defined in terms of substitutability. It is the smallest

1.4. Predatory Pricing:

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT

Predation is exploitative behaviour and can be indulged in only by enterprise(s) having

1.4.1 The major elements involved in the determination of predatory behaviour

 Establishment of dominant position of the enterprise in the relevant market

MEMORIAL SUBMITTED ON BEHALF OF RESPONDENT