NATIONAL COMPANY LAW APPELLATE TRIBUNAL,

PRINCIPAL BENCH, NEW DELHI

Competition Appeal (AT) No. 22 of 2021

IN THE MATTER OF:

All India Brewers Association ....Appellant

Vs.
Competition Commission of India & Ors. ...Respondent

Present
For Appellant: Mr. Subodh Prasad Deo and Ms. Rinki Singh,
Advocates.
For Respondent: Mr. Balbir Singh (ASG) with Mr. Balaji Subramanian,
Mr. Arav Kapoor, Ms. Ishani Banerjee, Ms. Monica
Benjamin and Ms. Surbhi Singh, Advocates for R-1.
Mr. Gopal Subramanium, Sr. Advocate with Ms. Sonam
Mathur, Mr. Rahat Dhawan, Ms. Shivangi Chawla, Ms.
Parumita Pal, Mr. Samriddha Gooptu, Mr. Pavan
Bhushan, Ms. Ujwala Uppaluri and Mr. Saksham
Dhingra, Advocates for R-2.
Ms. Nisha Kaur Uberoi and Mr. Gautam Chawla,
Advcoates for R-2, UBL
Mr. Atryee Sarkar, Mr. Afreen Abbassi and Ms. Manika
Brar, Advocates for R-5 (Carlsberg India)

ORDER
(Virtual Mode)
22.12.2021: The Learned Counsel for the Appellant submits that the first

Respondent/CCI had passed the impugned order on 24.09.2021, rendering

adverse findings against the Appellant/AIBA and imposed a monetary penalty

at 3% of the average of its turnover for the last three preceding financial years

of the ‘cartel’ amounting to Rs. 6,25,126/-.

The Learned Counsel for the Appellant contends that the impugned order

was passed by the first Respondent/CCI in utter disregard of the provisions of

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the Competition Act, 2002 and against the Principles of Law, resulting in

erroneous finding being arrived at, quiet in negation of the Provisions of

Section 3(3)(a) and Section 3(3) (b), read with Section 3 (1) of the Act, in a

market which is not susceptible to any anti-competitive agreement, price

fixation, including by limiting output, within the meaning of the Act as every

aspect of value chain in the beer market is highly regulated and under the

control of the respective State Governments.

The version of the Appellant is that the prices of ‘Beer’ are fixed by the

respective State Governments and are not decided by the forces of demand and

supply in the market. In reality, the Appellant/AIBA or the Respondents No. 2

to 5 do not have any ability to interfere with the prices prevailing in the market

sans the approval of the concerned State Governments.

The Learned Counsel for the Appellant takes a stand that the impugned

order is an illegal one and imposed upon the Appellant a penalty of Rs.

6,25,126/- under Section 27(b) of the Competition Act, 2002(12 of 2003)

calculated at 3% of the average of the turnover.

The Learned Counsel for the Appellant projects an argument that the

Appellant has a good case prima facie on merits and ‘Balance Of Convenience’

is also in favour of the Appellant. If an interim order of stay is not granted by

this Tribunal then it will cause an irreparable hardship and prejudice to the

Competition Appeal (AT) No. 22 of 2021

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Appellant. Conversely, no prejudice will be caused to the first Respondent/CCI

if the impugned order is stayed by this Tribunal in the interest of justice.

Mr. Balbir Singh Learned ASG appearing for the first Respondent

contends that the impugned order is a valid, justiciable and tenable one in the

eye of law and as such, the same is not to be stayed by this ‘Tribunal’ through

an interim order.

In this connection, this Tribunal has perused the various grounds raised

by the Appellant in ‘Appeal’ resting on facts and on legal plane and is of the

considered opinion that the ‘controversies/ contentious’ issues have been

raised in the instant Appeal, which necessarily require an in depth

examination, at the time of final hearing of the Appeal.

In view of the above, this ‘Tribunal’ keeping in mind the pivotal fact that

the Appellant has filed the instant Appeal being aggrieved with the impugned

order dated 24.09.2021 passed by the Respondent in suo moto case no.

6/2017, during the pendency of the Appeal’ to prevent an aberration of justice

and in furtherance of substantial cause of justice, stays the impugned order

dated 24.09.2021 in suo moto case no. 6/2017 subject to the payment of 10%

of the penalty amount levied by the Respondent/CCI, by way of ‘Fixed Deposit

Receipt’ to and in favour of the Registrar, NCLAT within three weeks from the

date of passing of this order.

Competition Appeal (AT) No. 22 of 2021

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In the interregnum, it is open to the Learned Counsels for the

Respondent No. 1,2,5 to file Reply and to file Rejoinder by the Learned Counsel

for the Appellant before the Office of the Registry not only through e-filing but

also through the hard copy and the copy of the same shall be exchanged

between them.

Let notice be issued to Respondent No. 3 & 4 by speed post returnable by

29.03.2022. Let the requisites together with process fee be filed by the Learned

Counsel for the appellant on or before 05.01.2022. The Appellant is require to

furnish the mobile no. and e-mail address of the Respondent No. 3 & 4, in that

event, the notice may also be issued by the Office of Registry in that mode.

List the case ‘For Admission (After Notice)’ on 29th March, 2022.

[Justice M. Venugopal]
Member (Judicial)

[Dr. Alok Srivastava]

Member (Technical)

sr/gc
Competition Appeal (AT) No. 22 of 2021