TEAM CODE – 37

10th FYLC-RANKA NATIONAL MOOT COURT COMPETITION, 2021

BEFORE THE HON’BLE NATIONAL COMPANY LAW APPELLATE TRIBUNAL

OF JINLAND

Under Section 53B of the Competition Act, 2002

Competition Appeal (At) _____ of 2021

MR. PRICKLEPANTS PVT. LTD ……………………………………………..APPELLANT

VERSUS

ANTITRUST COMMISSION OF JINLAND ………………………………..RESPONDENT

Most Respectfully Submitted to the Hon’ble National Company Law Appellate Tribunal of
Jinland

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

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 TABLE OF CONTENTS

L I S T O F A B B R E V I A T I O N S ....................................................................................... 4
I N D E X O F A U T H O R I T I E S ......................................................................................... 5
S T A T E M E N T O F J U R I S D I C T I O N ............................................................................ 8
S T A T E M E N T O F F A C T S ............................................................................................. 9
I S S U E S R A I S E D .......................................................................................................... 12
S U M M A R Y O F A R G U M E N T S .................................................................................. 13
A R G U M E N T S A D V A N C E D ....................................................................................... 15
I. THAT THE PRESENT APPEAL FILED BY THE PETITIONER BEFORE THE HON’BLE
NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF JINLAND IS MAINTAINABLE. ........... 15
A. The Appellant Has Helped The Antitrust Commission Of Jinland In The Fulfilment
Of Its Duties. ............................................................................................................... 15
B. Proper Procedure Has Not Been Followed By The Commission........................... 16
C. The Appellant Has Been Aggrieved By The Order Of The Commission Dated
1.05.2021. ................................................................................................................... 16
D. The Appellant Has Been Vested With The Right To Appeal In The Competition
Act, 2002..................................................................................................................... 17
II. THAT THE PENALTY IMPOSED BY THE ANTITRUST COMISSION OF JINLAND, UNDER
THE SCHEME OF LESSER PENALTY PROVISION, IS NOT JUSTIFIED. ..................................... 18
A. Quantum Of Penalty Imposed Is Not Justified. ..................................................... 18
B. In Arguendo, Imposition Of Penalties Is Wrongful In Absence Of An Anti-
Competitive Agreement. .............................................................................................. 20
III. THAT THE EVIDENCE(S) PROVIDED TO THE DG FOR INVESTIGATION OF THE
CARTELIZATION BETWEEN THE PETITIONER AND OTHER COMPANIES MAKE THE
PETITIONER COMPANY ENTITLED FOR LESSER PENALTY. .................................................. 21
A. Initial And Sufficient Disclosure Was Made By The Appellant. ........................... 21
B. Continuous And Equivalent Co-Ordination Was Provided By The Appellant In The
Investigation. ............................................................................................................... 22
IV. THAT THE ANTITRUST COMMISSION OF JINLAND IS NOT IN ADHERENCE OF ITS
OBLIGATIONS AS PER THE DUE PROCESS TO BE FOLLOWED IN INVESTIGATIONS OF
CARTELS AND ADJUDICATIONS ON LENIENCY. ................................................................. 23
A. Standard Of Proof Is Higher Than Preponderance Of Probabilities. ..................... 23

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 B. The Commission Has Overlooked Multiple Potential Positive Impacts During
Adjudication. ............................................................................................................... 24
P R A Y E R .......................................................................................................................... 26

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 LIST OF ABBREVIATIONS

Abbreviation Full Form

AIR All India Reporter

Antitrust Commission of Jinland (Lesser Regulations

Penalty) Regulation, 2017

Art. Article

CCI Competition Commission of India (for the

purposes of footnotes)

CompLR Company Law Reporter

DG Director General

ECR European Court Reports

EU European Union

HC High Court

LPA Leniency Petition Application

NCLAT Hon’ble National Company Law

Appellate Tribunal of Jinland

SCC Supreme Court Cases

SCR Supreme Court Reporter

Sec. Section

The Commission Antitrust Commission of Jinland

US United States

WP Writ Petition

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 INDEX OF AUTHORITIES

STATUTES

Competition Act 2002--------------------------------------------------------------------------------- 14

EU CASES

Case 89/85 Ahlström v Commissioner [1993] ECR I-1307 -------------------------------------- 24

Case C-310/93 BPB Plc v Commission [2008] ECR II-1333 ------------------------------------ 24
Case T-36/05 Coats Holdings Ltd and J & P Coats Ltd v European Commission [2007] ECR
II-110------------------------------------------------------------------------------------------------- 24
Joined Case T-44/02, T-54/02, T-60/02 and T-61/02 Dresdner Bank and Others v
Commission [2006] ECR II-3567 ---------------------------------------------------------------- 24

REGULATIONS

Antitrust Commission of Jinland (Lesser Penalty) Regulation 2009 and amended in 2017 (in
pari materia with Indian Law) -------------------------------------------------------------------- 15

ARTICLES AND JOURNALS

Howard Marvel & McCafferty, ‘Resale Price Maintenance and Quality Certification’ (1984)
15 Rand J Econ 346, 347–349 -------------------------------------------------------------------- 25
Kenneth G. Elzinga & David E. Mills, ‘The Economics of Resale Price Maintenance’ (2009)
vol 52 issue 2 Issues in Competition law and policy, 6 accessed 5 November 2017 ------- 25
Maurice Stucke, ‘Does the Rule of Reason Violate the Rule of Law?’ (2009) 42 University of
California Davis Law Review 1375, 1380 ------------------------------------------------------- 24
Richard A Posner, ‘The Next Step in the Antitrust Treatment of Restricted Distribution: Per
Se Legality’ (1981) 48 University of Chicago Law Review 6, 8------------------------------ 24

INDIAN CASES

A Rajendran and Ors v. Assistant Commissioner of Income Tax (2010) 134 TTJ 498 (ITAT
Chennai) --------------------------------------------------------------------------------------------- 24
Amolakch and Chhazed v Bhagwandas (1977) 3 SCC 566 (SC) [13]--------------------------- 24
Anand Parkash Agarwal v. Dakshin Haryana Bijli Vitran Nigam, 2017 SCC OnLine Comp
AT 18 ------------------------------------------------------------------------------------------------ 15

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Automobiles Dealers Association, Hathras, UP v. Global Automobiles Limited and Ors Case
No 33/2011 (CCI) ---------------------------------------------------------------------------------- 24
Builders Association of India v. Cement Manufacturers Association and Ors. Case No.
29/2010 (CCI) [5.5.7] ------------------------------------------------------------------------------ 23
Chettinad International Coal Terminal Private Limited v. The Competition Commission of
India and Ors., 2016 SCC OnLine Mad 14805 -------------------------------------------------- 21
Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 SCC 744 ----- 15
Garikapati Veeraya v. N. Subbiah Choudhry, 1957 SCR 488 ------------------------------------ 17
In Re: Anticompetitive conduct in the Dry-Cell Batteries Market in India, Suo Motu Case
No. 02 of 2017 [CCI]------------------------------------------------------------------------------- 19
In Re: Cartelisation by broadcasting service providers by rigging the bids submitted in
response to the tenders floated by Sports Broadcasters, Suo Motu Case No. 02 of 2013
[CCI] ------------------------------------------------------------------------------------------------- 19
In Re: Cartelisation in industrial and automotive bearings, 2020 SCC OnLine CCI 19 ------- 24
In Re: Cartelisation in Industrial and Automotive Bearings, 2020 SCC OnLine CCI 19 ----- 22
In Re: Cartelisation in respect of zinc carbon dry cell batteries market in India, 2018 SCC
OnLine CCI 81 -------------------------------------------------------------------------------------- 19
In Re: Cartelisation in the supply of Electric Power Steering Systems (EPS Systems), Suo
Motu Case No. 07 (01) of 2014 [CCI] ----------------------------------------------------------- 19
In Re: Nagrik Chetna Manch, 2018 SCC OnLine CCI 61 ---------------------------------------- 22
Lafarge India Ltd v. Competition Commission of India and Ors. (2013) CompLR 439
(CompAT) [15] ------------------------------------------------------------------------------------- 24
M/s Pyramid Electronics Ltd v. M/s Western Electric and Trading Company, 2017 SCC
OnLine CCI 56 -------------------------------------------------------------------------------------- 21
Samir Agrawal v. Competition Commission of India, (2021) 3 SCC 136 ---------------------- 17
Shri M M Mittal v. M/s Paliwal Developers Ltd Case No 112/2015 (CCI) -------------------- 25
Subash Babu v. State of Andhra Pradesh, (2011) 7 SCC 616 ------------------------------------ 16
Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of Restrictive Trade
Agreement (1977) AIR 973 (SC) ----------------------------------------------------------------- 25
The Competition Commission of India v. Bharti Airtel Ltd. and Ors., (2019) 2 SCC 521 --- 21
Western Coalfields Ltd v. SSV Coal Carriers Private Ltd and Ors. Case No 34 of 2015 (CCI)
[48] --------------------------------------------------------------------------------------------------- 24

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 REPORTS, GUIDES AND STUDIES

Competition Commission of India, Leniency Programme

https://www.cci.gov.in/sites/default/files/advocacy_booklet_document/Leniency.pdf
(Advocacy series 8, 2020) ------------------------------------------------------------------------- 20
India Monopolies Inquiry Commission, Report of the Monopolies Inquiry Commission
(Government of India Press, 1965), vol 1 -------------------------------------------------------- 25
OECD Policy Roundtables, Resale Price Maintenance (DAF/COMP (2008)37, 2008) 144 - 25

US CASES

Continental TV v. GTE Sylvania 433 US 36, 433 (1977) ---------------------------------------- 24

Dr Miles Medical Co v. John D Park & Sons Co 220 US 373 374 (1911) --------------------- 25
Leegin Creative Leather Products, Inc v. PSKS Inc. 551 US 877, 2 (2007) -------------------- 25
Leegin Creative Leather Products, Inc v. PSKS, Inc 551 US 877, 2 (2007) -------------------- 24

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 STATEMENT OF JURISDICTION

That the Appellant has approached the Hon’ble National Company Law Appellate Tribunal
of Jinland through an appeal filed under Section 53B of the Competition Act, 2002 which
reads as –

“Section 53B.- Appeal to Appellate Tribunal

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

or enterprise or any person, aggrieved by any direction, decision or order referred to in
clause

(a) of section 53A may prefer an appeal to the Appellate Tribunal

(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.

(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.”

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 STATEMENT OF FACTS

Background of the Dispute

There has been an increased dependence of the people of Jinland on high-tech electrical toys.
In lieu of spending time with their children for their healthy physical and mental
development, parents are increasingly relying on newly high-tech electrical toys to
demonstrate their love and affection.

As toy manufacturers, Mr. Pricklepants Pvt Ltd., Slinky Pvt. Ltd., Sheriff Woody Pvt. Ltd.
And #Fantuoos Pvt. Ltd. hold a significant market share in Jinland. Due to their influence in
the market, they can easily affect the prices of toys in the market of Jinland. As major
shareholders in the toy industry, the aforementioned corporations formed a cartel to fix prices
in order to maximize profits and drive out small manufacturers from the market.

The Dispute

The dispute arises out of the leniency application filed by Mr. Pricklepants Pvt. under the
Antitrust Commission of Jinland (Lesser Penalty) Regulations, 2015. This LPA was used as a
basis by the Commission to initiate a suo motu investigation on 01.01.2021.

Through the LPA Mr. Pricklepants Pvt. submitted that there were exchanges of information
among Slinky Pvt. Ltd., Shriff Woody Pvt. Ltd., #Fantuoos Pvt. Ltd. and itself. This
information was related to sales, production and marketing of the high-tech electrical toys.
Subsequently Shriff Woody Pvt. Ltd. and other companies also filed LPA’s disclosing further
evidence of information exchange as shown in the table below.

Mr. Pricklepants Pvt. Slinky Pvt. Ltd. Shriff Woody Pvt. #Fantuoos Pvt. Ltd.
Ltd. Ltd.
2 LPA Filed 4 LPA Filed
1 LPA Filed 3 LPA Filed

Simple Information Documents Emails and Messages

showing gain communication
after details
cartelization.

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 Findings of the DG

The DG conducted an investigation and came to the conclusion that the four companies
through association used to share sales, production and marketing data of all types of high-
tech electrical toys. This was done on a half yearly basis and allowed them to monitor inter se
market share in the organized market of high-tech electrical toys in Jinland.

The DG further found instances of exchange of commercially sensitive information,

including in relation to pricing, wholesale pricing, margins, promotional schemes and launch
of new products. Furthermore, various drafts of a proposed press release contemplating price
increase measures by the four companies were also found.

Findings of the Commission

Contrary to the findings of the DG the Commission observed that exchange of data relating to
sales, production and marketing of high-tech electrical toys indicated a possibility of
collusion and could at best be considered a plus factor.

Furthermore, the Commission was of the opinion that although the evidence collected by the
DG suggested exchange of commercially sensitive information, it did not establish that the
Opposite Parties agreed upon the actual terms of increasing or determining prices.

The Commission concluded that while there was evidence to suggest a possibility of
collusion, there was insufficient evidence to establish that such activities resulted in price
fixing, which reduces strategic uncertainty, independence of competitors’ conduct on the
market and diminishes their incentives to compete, thereby facilitating collusion. The
commission then issued its order on 1st May 2021, finding the four companies alleged for
cartelization in the high-tech electrical toys market and imposed penalties as shown in the
table below.

Mr. Pricklepants Pvt. Slinky Pvt. Ltd. Shriff Woody Pvt. #Fantuoos Pvt. Ltd.
Ltd. Ltd.

1 Crore 1 Lakh Nil 5 Lakhs

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 Case Before the National Company Law Appellate Tribunal

The case before the NCLAT, arises out of the now impugned order of the Commission dated
1.05.2021. Mr. Pricklepants Pvt. Ltd. aggrieved by the said order of the Commission
preferred an appeal before the NCLAT for the adjudication of the issues raised in pursuance
of the scheme laid down by the legislature with respect to the lesser penalty provisions in the
statute.

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 ISSUES RAISED

The following issues are raised before this Hon’ble Tribunal:

I. Whether the present appeal filed by the Appellant before the Hon’ble National Company
Law Appellate Tribunal of Jinland is Maintainable?
II. Whether the penalty imposed by the Antitrust Comission of Jinland, under the scheme of
lesser penalty provision, justified or not?
III. Whether the evidence(s) provided to the DG for investigation of the cartelization
between the Appellant and other companies make the Appellant company entitled for
lesser penalty?
IV. Whether the Antitrust Commission of Jinland is in adherence of its obligations as per the
due process to be followed in investigations of cartels and adjudications on leniency?

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 SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT APPEAL FILED BY THE APPELLANT BEFORE

THE HON’BLE NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF
JINLAND IS MAINTAINABLE?

The Appellant has helped the Commission in fulfilling its duties, by providing information.
This information was used as a basis for starting the investigation into the alleged
cartelization. This information would be considered vital disclosure. The Appellant was
aggrieved by the order due to its contributions being ignored and no lesser penalty being
granted. Proper procedure was also ignored in the proceedings. The right to appeal before the
NCLAT is a substantive right provided for in the Competition Act, 2002. The appeal is
therefore maintainable.

II. WHETHER THE PENALTY IMPOSED BY THE ANTITRUST COMISSION OF

JINLAND, UNDER THE SCHEME OF LESSER PENALTY PROVISION,
JUSTIFIED OR NOT?

The Appellant contends that the quantum of penalty imposed upon it is not justified. Since
the Appellant was the first applicant to file a LPA and provide the Commission with vital
disclosures regarding the existence of a cartel, it must be accorded priority status in granting
lesser penalties. Moreover, the vital disclosures made by the Appellant enabled the
Commission to form a prime facie opinion regarding the existence of a cartel and hence
ordered an investigation into the anti-competitive behavior of the market players. The
Appellant therefore submits that it is entitled to reduction of penalty upto and equal to 100%
of the penalties levied, in accordance with the Lesser Penalty Regulations. The denial of
protection of the Lesser Penalty Regulations to the Appellant is not justifiable and is against
the objectives of the Leniency Program itself. In arguendo, the Appellant also submits that
since the Commission observed that the exchange of information amongst the Appellant and
other market players does not constitute a coordinated approach or anti-competitive behavior
on their part, the Commission cannot impose penalties on either of the companies on a mere
allegation of cartelization, according to Section 27 of the Act.

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III. WHETHER THE EVIDENCE(S) PROVIDED TO THE DG FOR
INVESTIGATION OF THE CARTELIZATION BETWEEN THE APPELLANT
AND OTHER COMPANIES MAKE THE APPELLANT COMPANY ENTITLED
FOR LESSER PENALTY?

The evidence(s) provided in the present case to the DG for investigation of the cartelization
makes the Appellant entitled to lesser penalty due to initial and sufficient disclosure made by
the Appellant, and continuous and equivalent co-ordination was provided by the Appellant in
the investigation. The appellant was the first of the companies to provide information, and the
information was sufficient for formulation of a prima facie opinion by the Commission.
Further, the appellant cooperated with the Commission during the course of the investigation.
In arguendo, that if this tribunal were to hold that the Appellant’s initial disclosure was
insufficient in the assistance of investigation, the tribunal can treat the disclosures made by
the members of the alleged cartel as disclosures in conjunction.

IV. WHETHER THE ANTITRUST COMMISSION OF JINLAND IS IN

ADHERENCE OF ITS OBLIGATIONS AS PER THE DUE PROCESS TO BE
FOLLOWED IN INVESTIGATIONS OF CARTELS AND ADJUDICATIONS ON
LENIENCY?

It is submitted that The Antitrust Commission of Jinland is not in adherence of its obligations
as per the due process to be followed in investigations of Cartels and adjudications on
Leniency, as firstly it has relied on mere preponderance of probabilities as a standard of
proof, and secondly potential positive impacts of arrangement have been overseen in the
process of adjudication. With regard to the former, the standard of proof to establish an
agreement is higher than mere ‘preponderance of probabilities’.

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 ARGUMENTS ADVANCED

I. THAT THE PRESENT APPEAL FILED BY THE PETITIONER BEFORE THE

HON’BLE NATIONAL COMPANY LAW APPELLATE TRIBUNAL OF
JINLAND IS MAINTAINABLE.
1. The Appellant helped the Commission in fulfilment of its duties by providing
information. This information was used in order to conduct. and investigation and
penalise anti-competitive behaviour.
2. Procedure in accordance to the regulations required to be followed was not followed in
the proceedings. This led to the appellant not being able to fairly represent themselves
and hence the order of the Commission led to the appellant being treated unfairly.
3. The final order that the commission gave ignored the contributions of the appellant with
no lesser penalty being granted and this led to the appellant being aggrieved by the order.
4. The appellant had a vested right under the Act to appeal such orders before the NCLAT.
Therefore, this being a mere exercise of a substantive right the present appeal is
maintainable.
A. The Appellant has helped the Antitrust Commission of Jinland in the fulfilment
of its duties.
5. The Commission has a duty to eliminate practices having an adverse effect on
competition.1 In pursuance of this duty the Commission on receiving information from
any person, may inquire into alleged violations of subsection 1 of section 3 of the Act. 2
6. On receiving information if the commission is of the opinion of the existence of a prima
facie case it shall direct the DG to cause an investigation.3 It is seen that vital disclosure
means evidence that allows the Commission to form a prima facie opinion of the
existence of a cartel or of contravention of section 3 of the Act.4
7. The Commission in its procedure is expected to first form a prima facie opinion as to the
existence of a case of contravention. Only after this opinion is formed is the DG asked to
initiate investigation.5

1
Competition Act 2002, s 18
2
ibid, s 19
3
ibid, s 26
4
Antitrust Commission of Jinland (Lesser Penalty) Regulation 2009 and amended in 2017 (in pari materia with
Indian Law), regulation 2
5
Competition Commission of India v. Steel Authority of India Ltd., (2010) 10 SCC 744

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8. As seen from the facts the appellant, had filed a leniency application before the
commission. It was based on this leniency application that the commission was able to
initiate a Suo Motu investigation into the alleged cartelization.6
9. It is seen that the DG then investigated the four companies and their affairs as mentioned
in the information given by the appellant. 7 This shows that the information received in
the leniency application by the appellant was treated as information received from an
informant.
10. On the basis of this information the commission was able to opine that a prima facie case
for contravention of section 3 of the Act did exist. This then allowed the commission to
direct the DG to investigate. This shows that the information shared by the appellant
would fall under the category of vital disclosure, allowing the Commission to fulfil its
duties.
B. Proper procedure has not been followed by the Commission.
11. If the Commission is of the opinion that a true and complete disclosure has not been
made it may reject the application for lesser penalty, however, the applicant must be
given the right to be heard first.8 Hearing the applicant is necessary unless the statute is
silent on the point or it gives the Commission discretion to invite or not invite the
applicant for hearing. 9
12. It is seen that the appellant was not invited for such a hearing before their leniency
application was disregarded. This hearing was not discretionary on the part of the
Commission. The Commission is required to give the party a chance to be heard before
dismissal of application in accordance with the regulation. Therefore, proper procedure
has not been followed by the Commission and the appellant has been unfairly penalised.
C. The Appellant has been aggrieved by the order of the Commission dated
1.05.2021.
13. There is a requirement to provide vital disclosure, cooperate genuinely, discontinue
involvement in cartel activities and not conceal relevant documents in a leniency
application. 10 Grant of lesser penalty with a forfeiture of upto hundred percent of the
penalty is to be provided if the applicant is the first to make a vital disclosure.

6
Moot Proposition, p. 3
7
ibid, p. 4
8
Regulations[n 4], regulation 5(7)
9
Anand Parkash Agarwal v. Dakshin Haryana Bijli Vitran Nigam, 2017 SCC OnLine Comp AT 18
10
Regulations [n 4], regulation 3

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14. This vital disclosure should allow the Commission to form a prima facie opinion of the
existence of a cartel or of contravention of section 3 of the Act.11 Due regard must be
given to the stage at which the applicant comes forward with information. 12
15. The concept of aggrieved person cannot be read in a static manner. It is an elastic
concept depending on several factors effecting the case.13 A person who suffers a legal
injury would be considered an aggrieved person. 14
16. The facts show that the appellant was the first of the companies to approach the
Commission with information.15 They also show that the Commission started
investigation based on the information given by the appellant. 16 It is clear that this
information would fall under the definition of vital disclosure.
17. The appellant however, has not been given any benefit. Not only was the appellant not
given any priority, but was fined without being awarded any lesser penalty. This leads to
the appellant being caused an injury and hence being aggrieved.
D. The Appellant has been vested with the right to appeal in the Competition Act,
2002.
18. Any enterprise or person aggrieved by the direction, decision or order of the commission
may prefer an appeal to the appellate tribunal. 17 This appeal can relate to orders falling
under section 27 of the Act.18 When the Commission performs inquisitorial functions the
possibility of appeal must be kept wide open in public interest.19
19. An order of the Commission which puts an end to the procedure and determines rights
and liabilities of parties is open to appeal. 20 Further, a right to appeal is always a creation
of a statue and requires application of the rule of plain construction. 21 It is also to be
noted that the right of appeal is a substantive right and not a mere matter of procedure.22
This right can only be taken away if provided by an enactment explicitly or by necessary
intendment.23

11
ibid, reg 4
12
Regulations [n 8]
13
Subash Babu v. State of Andhra Pradesh, (2011) 7 SCC 616
14
ibid
15
Moot Proposition, p.3
16
ibid
17
Competition Act [n 1], s 53B
18
ibid, s 53A
19
Samir Agrawal v. Competition Commission of India, (2021) 3 SCC 136
20
Garikapati Veeraya v. N. Subbiah Choudhry, 1957 SCR 488
21
ibid
22
ibid
23
ibid

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20. The appellant as a party involved in the inquisitorial action of the commission had a right
to appeal. They were aggrieved by the order of the commission. This order was
appealable before the present forum under the statute.
21. The Act also specifically allows for such orders to be appealed before the present forum.
As such the present appeal is merely an exercise of the appellants substantive right
provided for in the Act. For the reasons presented above the appeal is maintainable.

II. THAT THE PENALTY IMPOSED BY THE ANTITRUST COMISSION OF

JINLAND, UNDER THE SCHEME OF LESSER PENALTY PROVISION, IS
NOT JUSTIFIED.

22. Section 46 of the Act confers the Commission with the power to impose lesser penalty
on enterprises for providing vital disclosure regarding the existence of an anti-
competitive agreement. The Appellant contends that, being the first leniency applicant, it
was entitled to reduction in penalty upto and equal to 100% for furnishing full, true and
vital disclosure with respect to the cartel conduct in the high-tech electrical toy market.
In light of the same it is submitted, that firstly, the quantum of penalty imposed on the
Appellant is not commensurate with the provisions of the Lesser Penalty Regulations,
and secondly, in arguendo, the imposition of penalties is wrongful due to the absence of
an anti-competitive agreement amongst the competitors in the market.
A. Quantum of penalty imposed is not justified.
23. The discretionary power of the Commission to grant lesser penalties under the Act is
exercised giving due regard to, inter alia, the stage at which the applicant makes the
disclosure, the evidence already in possession of the Commission and the quality of
information provided by the applicant.24 The Appellant submits a three-fold argument to
substantiate the irregularities in the imposition of penalties by the Commission.
i. Priority status in granting lesser penalties must be accorded to the first applicant
24. It is submitted that Reg. 4 of the Lesser Penalty Regulations provides a marker system
based on which the Commission grants lesser penalties to the leniency applicants. The
said marker system confers the first priority status to the first leniency applicant. 25 The
leniency applicant with the first priority status is granted the benefit of penalty reduction
upto or equal to 100% of the penalties leviable.26 It is humbly submitted that the

24
Regulations [n 4], regulation 3(4)
25
ibid, regulation 4(a)
26
ibid, proviso

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 Appellant was the first applicant to approach the Commission with a LPA, providing
information related to the existence of a cartel in the high-tech electrical toys market.
However, the Commission levied a penalty of 1 crore rupees which amounts to 10% of
the average turnover of the preceding three years, without providing any leniency
whatsoever. Even so, the subsequent leniency applicants, Slinky Pvt. Ltd., Sheriff
Woody Pvt. Ltd. and #Fantuoos Pvt. Ltd. were provided a reduction of penalty of upto
100%27 despite being marked a lower priority status according to the stage at which the
LPA was filed. 28 Therefore, the Commission was not justified in denying the Appellant
with any penalty reductions.
ii. Vital disclosures provided by the Appellant enabled the Commission to form a
prima facie opinion regarding the existence of a cartel
25. It is submitted that the first leniency applicant must provide vital disclosures by
submitting evidence of a cartel to the Commission to secure the 100% penalty
reduction.29 The true and full disclosure of information under the LPA must enable the
Commission to form a prima facie opinion regarding the existence of the cartel and
trigger an investigation by the DG.30 It is submitted that the Appellant approached the
Commission with vital information regarding exchanges of information relating to sales,
production and marketing of the high-tech electrical toys among itself and, Slinky Pvt.
Ltd., Sheriff Woody Pvt. Ltd. and #Fantuoos Pvt. Ltd. showing the culpability of each
party in contravention of Section 3 of the Act. Based on the information furnished by the
Appellant, the Commission initiated an investigation into the allegations of cartelization.
It is pertinent to note that the Commission did not, at the time of the application of LPA
by the Appellant, possess requisite information to establish cartelization on part of the
market players. Therefore, the information provided by the Appellant was vital and
sufficient in aiding the Commission to establish existence and conduct investigation of a
cartel and hence the Appellant is entitled to a reduction in penalty. 31
26. It is submitted that in the case of the Zinc Carbon Dry-Cell Batteries32 the Commission
granted full immunity from penalty to Panasonic Energy India Co. Ltd. on account of

27
Moot Proposition, p. 4
28
Regulations [n 4], regulation 4(c)
29
ibid, regulation 4
30
ibid, regulation 2(i)
31
ibid, regulation 4; In Re: Cartelisation in the supply of Electric Power Steering Systems (EPS Systems), Suo
Motu Case No. 07 (01) of 2014 [CCI]
32
In Re: Cartelisation in respect of zinc carbon dry cell batteries market in India, 2018 SCC OnLine CCI 81. In
Re: Anticompetitive conduct in the Dry-Cell Batteries Market in India, Suo Motu Case No. 02 of 2017 [CCI]

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 being the first leniency applicant and enabling the Commission to form a prime facie
opinion regarding the existence of a cartel. While mere 30% and 20% reduction in
penalty were granted to applicants which applied for leniency at a later stage. The
Commission, in a plethora of orders has provided 100% penalty reductions to the first
leniency applicants who have provided vital disclosures for establishing anti-competitive
behaviour.33 It is therefore submitted that the Appellant must be granted a 100%
reduction in penalty, having complied with the pre-conditions of Regulation 3 (as would
be discussed in Issue three in regards to indicating entitlement to lesser penalty on the
basis of evidence provided to DG for investigation) as well as the conditions under
Regulation 4 of the Lesser Penalty Regulations, that is, to be the first to make vital
disclosures to aid the Commission to form a prime facie opinion regarding the existence
of the cartel.
iii. Order of the Commission is violative of the objectives of the Leniency scheme.
27. It is respectfully submitted that the basic premise of the Leniency Program under the Act
is to encourage and incentivize entities to come forward and disclose anti-competitive
agreements in lieu of immunity or lenient treatment.34 Lenient treatment towards the
whistle-blower or the cartel member who reports about the existence of the cartel to the
Commission, is important to encourage them, and subsequently, contribute to the success
of the Program. 35 It is submitted that despite the Appellant having assisted the
Commission with vital information regarding the existence of a cartel, it was not
accorded a lenient treatment by the Commission. Therefore, by denying the rightful
reduction in penalty of the Appellant, the Commission has not only disincentivized
market players such as the Appellant but also rendered the Leniency Program
inefficacious.
B. In arguendo, imposition of penalties is wrongful in absence of an anti-
competitive agreement.
28. It is humbly submitted that penalties can be imposed on enterprises under Section 27 of
the Act only upon the satisfaction of the Commission regarding the contravention of
Section 3 or Section 4 of the Act. In the instant matter, the Commission observed that the
exchange of data relating to sales, production and marketing of high-tech electrical toys
33
In Re: Cartelisation by broadcasting service providers by rigging the bids submitted in response to the tenders
floated by Sports Broadcasters, Suo Motu Case No. 02 of 2013 [CCI]; Cartelisation in respect of zinc carbon
dry cell [n 32]
34
Competition Commission of India, Leniency Programme
https://www.cci.gov.in/sites/default/files/advocacy_booklet_document/Leniency.pdf (Advocacy series 8, 2020)
35
ibid

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 does not by itself constitute enough evidence to conclude that the firms were acting in a
coordinated manner.36 Therefore, it is submitted that in the absence of an anti-
competitive agreement which contravenes the provisions under Section 3 or Section 4 of
the Act, no penalties whatsoever can be imposed by the COMMISSION on the firms
with respect to the sharing of information or alleged cartelization.

III. THAT THE EVIDENCE(S) PROVIDED TO THE DG FOR INVESTIGATION OF

THE CARTELIZATION BETWEEN THE PETITIONER AND OTHER
COMPANIES MAKE THE PETITIONER COMPANY ENTITLED FOR LESSER
PENALTY

29. The evidence(s) provided in the present case to the DG for investigation of the
cartelization makes the Appellant entitled to lesser penalty due to [A] initial and
sufficient disclosure made by the Appellant, and [B] Continuous and equivalent co-
ordination was provided by the Appellant in the investigation.
A. Initial and sufficient disclosure was made by the Appellant.
30. In the present case, the Appellant was the first among the four companies involved in the
alleged cartel to disclose the existence of the alleged cartel, 37 and it was on the basis of
this disclosure that brought forward other companies to disclose surrounding
information, 38 and hence called for investigation.
31. The information disclosed by the Appellant, which included indications of exchange of
information relating to sales, marketing and production, which was deemed to be
arguably insufficient, was sufficient to allow for formulation of a prima facie opinion
about the co-ordinated behaviour in place due to clear indications of the means and
nature of activity undertaken in the arrangement 39.
32. In Re: Cartelization by broadcasting service providers by rigging the bids submitted in
response to the tenders floated by Sports Broadcasters40, the first leniency petition was
provided a 100% reduction, even though the order records that the 2nd applicant, who
was given a reduction of only 30%, added value to the investigation, made vital
disclosures and there are references which reek of 'not complete' cooperation by the first

36
Moot Proposition, p.4
37
ibid, p.3
38
ibid
39
Chettinad International Coal Terminal Private Limited v. The Competition Commission of India and Ors.,
2016 SCC OnLine Mad 14805; The Competition Commission of India v. Bharti Airtel Ltd. and Ors., (2019) 2
SCC 521
40
Broadcasting Services [n 33]

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 applicant. The Commission stated that the first applicant provided sufficient material for
the Commission to formulate a prima facie opinion, and hence granted the 100%
reduction.
33. Hence, the Appellant becomes entitled to the benefit of reduction in this regard despite
additional information that may have been contributed by the three other companies, due
to the former sufficing for formulation of a prima facie opinion. The aforesaid
argumentation can be supplemented with the case of M/s Pyramid Electronics Ltd v. M/s
Western Electric and Trading Company41, where the benefit reduction was granted due
to the information provided explaining modus operandi, i.e. the way the co-ordinated
behaviour was executed in the alleged cartel, which has happened in the present case as
the nature of information disclosed (exchange of information relating to sales, marketing
and production) being sufficient to understand the means and manner of functioning of
the cartel.
34. Further, the Commission, in the case of Re: Cartelization in respect of zinc carbon dry
cell batteries market in India 42, granted complete immunity to the first leniency applicant
including its office bearers, as the investigation was initiated at the behest of Panasonic's
disclosure to the Commission.
35. Without any prejudice to the arguments under the previous issues, it is humbly submitted
that the penalty imposed and leniency granted by Commission to the Appellant is not
justified as it has made ‘significant value addition’ in the case by providing a true and
vital disclosure about the said agreement between the parties pertaining to the high tech-
toys industry.
B. Continuous and equivalent co-ordination was provided by the Appellant in the
investigation.
36. In addition to being the first company among the four in the alleged cartel to file a LPA
and facilitating the initiation of investigation and the information provided sufficing for a
prima facie view, the Appellant has been active and quintessential in the conduct of the
investigation and hence, formulation of the report.43 This continued co-ordination comes
as alongside and similar to the other three companies in the alleged cartel, who filed the
LPA significantly later than the Appellant. However, despite the turnover of all the four

41
M/s Pyramid Electronics Ltd v. M/s Western Electric and Trading Company, 2017 SCC OnLine CCI 56
42
Cartelization in respect of zinc carbon dry cell [n 32]
43
Moot Proposition, p. 3

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 companies in the relevant product market being similar, different rates of reduction were
granted in the leniency grant, with the Appellant being provided the least reduction.
37. Differential treatment of members of an alleged cartel providing information worth
‘significant value addition’ to the DG and the Commission was discouraged and not
allowed for by the latter in In Re: Cartelisation in Industrial and Automotive Bearings 44
and In Re: Nagrik Chetna Manch45.
38. Further, it is necessary for the Commission to spell out why two seemingly similarly
placed parties are meted out differential treatment. For instance, in the second and third
leniency orders, subsequent applicants are noted to have made no or minimal value
addition in terms of evidence proffered. Both, however, provide full co-operation in the
course of the investigation. While one is treated leniently, the other is not.
39. It is submitted in arguendo, that if this tribunal were to hold that the Appellant’s initial
disclosure was insufficient in the assistance of investigation, the tribunal can treat the
disclosures made by the members of the alleged cartel as disclosures in conjunction. This
is because additional related or extended details were the only ones disclosed by the
other three companies. 46 The Commission, in the broadcasting service providers’ case47
recognized such means of disclosure, and awarded a 100% reduction to the company that
made the first disclosure, mentioning that the same sufficed for a prima facie view and
the latter disclosures were supplementary to the first.
IV. THAT THE ANTITRUST COMMISSION OF JINLAND IS NOT IN
ADHERENCE OF ITS OBLIGATIONS AS PER THE DUE PROCESS TO BE
FOLLOWED IN INVESTIGATIONS OF CARTELS AND ADJUDICATIONS ON
LENIENCY.
40. It is submitted that The Antitrust Commission of Jinland is not in adherence of its
obligations as per the due process to be Followed in investigations of Cartels and
adjudications on Leniency, as [A] it has relied on mere Preponderance of Probabilities as
a standard of proof, and [B] potential positive impacts of arrangement have been
overseen in the process of adjudication.
A. Standard of Proof is higher than Preponderance of Probabilities.
41. It is submitted that the standard of proof to establish an agreement is higher than mere
‘preponderance of probabilities’ due to, Acceptance of ‘but for’ test by the

44
In Re: Cartelisation in Industrial and Automotive Bearings, 2020 SCC OnLine CCI 19
45
In Re: Nagrik Chetna Manch, 2018 SCC OnLine CCI 61
46
Moot Proposition, p. 3
47
Broadcasting Service Providers [n 33]

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 COMMISSION, and Acceptance of ‘beyond reasonable doubt’ in quasi-criminal
proceedings.
42. ‘But for’ test is explicitly accepted by the Commission, i.e. to state that ‘but for’ some
anti-competitive conduct between the parties the action and conduct of the parties cannot
be explained.48 Presently, the conditions for this test are not satisfied as the conduct of
the parties is self-explanatory by virtue of them being a part of high tech toys market.
43. It submitted that that the standard of proof should be raised to ‘beyond reasonable doubt’
as the penalties imposed by the Commission are penal in nature.49 Furthermore in a
quasi-criminal proceeding the accepted standard of proof is ‘beyond reasonable doubt’50
which can be established even through indirect evidence.51 Even for tax disputes52, a
rigour beyond mere preponderance is followed whilst imposing penalties and the same
standard should be undertaken by the Commission.
B. The Commission has overlooked multiple potential positive impacts during
adjudication.
44. In the process of imposition of penalty, succeeding the LPAs that were filed by the
members of the alleged cartel, the Commission has overlooked various positive impacts
that the collusion brought about and could bring about, which are mitigating factors in
not only according penalty, but also grant of leniency. 53 These include benefits to
consumers, facilitation of competition and development of brand image.
45. Section 19(3) of the Act enumerates accrual of benefits of the consumers to be
considered while determining AAEC.54 Parallel Pricing contributes to more diversity in
the market55 by increasing non price competition.56 It gives consumers more options to
choose between lowhigh priced branded products.57 Presently, limiting of discounts will

48
Builders Association of India v. Cement Manufacturers Association and Ors. Case No. 29/2010 (CCI) [5.5.7]
49
Lafarge India Ltd v. Competition Commission of India and Ors. (2013) CompLR 439 (CompAT) [15];
Western Coalfields Ltd v. SSV Coal Carriers Private Ltd and Ors. Case No 34 of 2015 (CCI) [48]
50
Amolakch and Chhazed v. Bhagwandas (1977) 3 SCC 566 (SC) [13]
51
Case C-310/93 BPB Plc v. Commission [2008] ECR II-1333, paras 63-64; Case 89/85 Ahlström v.
Commissioner [1993] ECR I-1307, paras 70-127; Case T-36/05 Coats Holdings Ltd and J & P Coats Ltd v.
European Commission [2007] ECR II-110, para 91; Joined Case T-44/02, T-54/02, T-60/02 and T-61/02
Dresdner Bank and Others v. Commission [2006] ECR II-3567 paras 137-148
52
A Rajendran and Ors v. Assistant Commissioner of Income Tax (2010) 134 TTJ 498 (ITAT Chennai) [11]
53
In Re: Cartelisation in industrial and automotive bearings, 2020 SCC OnLine CCI 19
54
Competition Act [n 1], s 19(3)
55
Leegin Creative Leather Products, Inc v. PSKS, Inc 551 US 877, 2 (2007)
56
Richard A Posner, ‘The Next Step in the Antitrust Treatment of Restricted Distribution: Per Se Legality’
(1981) 48 University of Chicago Law Review 6, 8
57
Automobiles Dealers Association, Hathras, UP v. Global Automobiles Limited and Ors. Case No 33/2011
(CCI) [12.9]

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 ultimately benefit the consumers as they will be served with various non-price benefits
and options to choose from
46. Parallel Pricing facilitates inter-brand competition.58 It facilitates market entry for new
firms and brands.59 New manufactures entering into the market can use such
restrictions. 60 New products and brand are essential for a dynamic economy and if that
can be achieved by Parallel Pricing, there is a pro-competitive effect.61 The Parallel
Pricing here has pro-competitive effect since it will help the other players to enter and
compete in the market. Resale price maintenance can increase inter-brand competition by
facilitating market entry. 62 The market restrictions can be used by new manufacturers to
facilitate the entry of unknown products.63 Parallel Pricing particularly, can be an
important device64 for new entrants.65
47. Parallel Pricing can play a major role in certifying products as premium or superior in
quality. 66 In case of branded products, it can form of limiting discounts67 can prevent
mark-down by distributers; this will in turn protect the brand image.68

58
Continental TV v. GTE Sylvania 433 US 36, 433 (1977)
59
Maurice Stucke, ‘Does the Rule of Reason Violate the Rule of Law?’ (2009) 42 University of California
Davis Law Review 1375, 1380
60
Continental TV [n 58]
61
Shri M M Mittal v. M/s Paliwal Developers Ltd Case No 112/2015 (CCI) [7]
62
Dr Miles Medical Co v. John D Park & Sons Co 220 US 373 374 (1911)
63
Howard Marvel & McCafferty, ‘Resale Price Maintenance and Quality Certification’ (1984) 15 Rand J Econ
346, 347–349
64
ibid
65
OECD Policy Roundtables, Resale Price Maintenance (DAF/COMP (2008)37, 2008) 144
66
Tata Engineering and Locomotive Co Ltd (Telco) v. The Registrar of Restrictive Trade Agreement (1977)
AIR 973 (SC) [693]
67
Leegin Creative Leather Products, Inc v. PSKS Inc. 551 US 877, 2 (2007)
68
Kenneth G. Elzinga & David E. Mills, ‘The Economics of Resale Price Maintenance’ (2009) vol 52 issue 2
Issues in Competition law and policy, 6 accessed 5 November 2017; India Monopolies Inquiry Commission,
Report of the Monopolies Inquiry Commission (Government of India Press, 1965), vol 1

Page | 25
 PRAYER

WHEREFORE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN AND

AUTHORITIES CITED, THIS HON’BLE TRIBUNAL MAY BE PLEASED TO:

1. HOLD THAT THE PRESENT APPEAL FILED BEFORE THE HON’BLE NATIONAL COMPANY
LAW APPELLATE TRIBUNAL OF JINLAND IS MAINTAINABLE;
2. HOLD THAT THE PENALTY IMPOSED BY THE ANTITRUST COMMISSION OF JINLAND
UNDER THE SCHEME OF LESSER PENALTY PROVISION IS NOT JUSTIFIED;

3. HOLD THAT THE EVIDENCES PROVIDED TO THE DG FOR INVESTIGATION OF THE

CARTELIZATION BETWEEN THE APPELLANT AND OTHER COMPANIES MAKE THE

APPELLANT COMPANY ENTITLED FOR THE LESSER PENALTY;

4. HOLD THE ANTITRUST COMMISSION OF JINLAND IS NOT IN ADHERENCE OF ITS

OBLIGATIONS AS PER THE DUE PROCESS TO BE FOLLOWED IN INVESTIGATIONS OF

CARTELS AND ADJUDICATIONS ON LENIENCY.

AND PASS ANY OTHER ORDER THAT THIS HON’BLE TRIBUNAL MAY DEEM FIT IN THE INTERESTS
OF JUSTICE, EQUITY AND GOOD CONSCIENCE

ALL OF WHICH IS MOST HUMBLY AND RESPECTFULLY SUBMITTED.

Sd-
(COUNSEL FOR THE APPELLANTS)

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