The Competition Act, 2002 PDF

THE COMPETITION ACT, 2002 (12 OF 2003) CONTENTS Sections Page CHAPTER I...

THE COMPETITION ACT, 2002 (12 OF 2003) CONTENTS Sections Page CHAPTER I PRELIMINARY 1. Short titles, extent and commencement 1 2. Definitions 1 CHAPTER II PROHIBITION OF CERTAIN AGREEMENTS, ABUSE OF DOMINANT POSITION AND REGULATION OF COMBINATIONS Prohibition of agreements 3. Anti-competitive agreements 5 Prohibition of abuse of dominant position 4. Abuse of dominant position 7 Regulation of combinations 5. Combination 8 6. Regulation of combinations 10 CHAPTER III COMPETITION COMMISSION OF INDIA 7. Establishment of Commission 12 8. Composition of Commission 12 9. Selection Committee for Chairperson and Members of Commission 13 10. Term of office of Chairperson and other Members 13 11. Resignation, removal and suspension of Chairperson 14 and other members 12. Restriction on employment of Chairperson and other 14 Members in certain cases 13. Administrative powers of Chairperson 15 14. Salary and allowances and other terms and conditions of 15 service of Chairperson and other Members 15. Vacancy, etc. not to invalidate proceedings of Commission 15 16. Appointment of Director General, etc. 16 i 17. Appointment of Secretary, experts, professionals and 17 officers and other employees of Commission CHAPTER IV DUTIES, POWERS AND FUNCTIONS OF COMMISSION 18. Duties of Commission 18 19. Inquiry into certain agreements and dominant position of enterprise 18 20. Inquiry into combination by commission 20 21. Reference by statutory authority 21 21A. Reference by Commission 22 22. Meetings of Commission 22 23. [Omitted by the Competition (Amendment) Act, 2007] 23 24. [Omitted by the Competition (Amendment) Act, 2007] 23 25. [Omitted by the Competition (Amendment) Act, 2007] 23 26. Procedure for inquiry under section 19 24 27. Orders by Commission after inquiry onto agreements or abuse of 25 dominant position 28. Division of enterprise enjoying dominant position 27 29. Procedure for investigation of combinations 27 30. Procedure in case of notice under sub-section (2) of section 6 28 31. Orders of Commission on certain combinations 29 32. Acts taking place outside India but having an effect on 30 competition in India 33. Power to issue interim orders 31 34. [Omitted by the Competition (Amendment) Act, 2007] 32 35. Appearance before Commission 32 36. Power of Commission to regulate its own procedure 33 37. [Omitted by the Competition (Amendment) Act, 2007] 34 38. Rectification of orders 35 39. Execution of orders of Commission imposing monetary penalty 35 40. [Omitted by the Competition (Amendment) Act, 2007] 36 CHAPTER V DUTIES OF DIRECTOR GENERAL 41 Director General to investigate contraventions 37 ii  CHAPTER VI PENALTIES 42. Contravention of orders of Commission 38 42A. Compensation in case of contravention of orders of Commission 38 43. Penalty for failure to comply with directions of Commission 39 and Director General 43A. Power to impose penalty for non-furnishing of information 39 on combinations 44. Penalty for making false statement or omission to furnish 39 material information 45. Penalty for offence in relation to furnishing of information 40 46. Power to impose lesser penalty 40 47. Crediting sums realised by way of penalties to Consolidated 41 Fund of India 48. Contravention by companies 41 CHAPTER VII COMPETITION ADVOCACY 49. Competition advocacy 42 CHAPTER VIII FINANCE, ACCOUNTS AND AUDIT 50. Grants by Central Government 43 51. Constitution of Fund 43 52. Accounts and Audit 43 53. Furnishing of returns, etc. to Central Government 44 CHAPTER VIIIA APPELLATE TRIBUNAL 53A. Appellate Tribunal 45 53B. Appeal to Appellate Tribunal 45 Omitted by the Finance Act, 2017, w.e.f. 26th May, 2017 46 53N. Awarding compensation 46 53O. Procedure and powers of Appellate Tribunal 47 53P. Execution of orders of Appellate Tribunal 48 53Q. Contravention of orders of Appellate Tribunal 48 53S. Right to legal representation 48 iii 53T. Appeal to Supreme Court 49 53U. Power to Punish for contempt 49 CHAPTER IX MISCELLANEOUS 54. Power to exempt 50 55. Power of Central Government to issue directions 50 56. Power of Central government to supersede Commission 50 57. Restriction on disclosure of information 51 58. Chairperson, Members, Director General, Secretary, 52 officers and other employees, etc., to be public servants. 59. Protection of action taken in good faith 52 60. Act to have overriding effect 52 61. Exclusion of jurisdiction of civil courts 52 62. Application of other laws not barred 53 63. Power to make rules 53 64. Power to make regulations 55 65. Power to remove difficulties 56 66. Repeal and saving 56 iv  THE COMPETITION ACT, 20021 No. 12 OF 2003 [13th January, 2003.] An Act to provide, keeping in view of the economic development of the country, for the establishment of a Commission to prevent practices having adverse effect on competition, to promote and sustain competition in markets, to protect the interests of consumers and to ensure freedom of trade carried on by other participants in markets, in India, and for matters connected therewith or incidental thereto. BE it enacted by Parliament in the Fifty-third Year of the Republic of India as follows:— CHAPTER I PRELIMINARY Short title, extent and commencement 1. (1) This Act may be called the Competition Act, 2002. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint: Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision. Definitions 2. In this Act, unless the context otherwise requires,— (a) “acquisition” means, directly or indirectly, acquiring or agreeing to acquire— (i) shares, voting rights or assets of any enterprise; or (ii) control over management or control over assets of any enterprise; (b) “agreement” includes any arrangement or understanding or action in concert,— (i) whether or not, such arrangement, understanding or action is formal or in writing; or (ii) whether or not such arrangement, understanding or action is intended to be enforceable by legal proceedings; 2 [substituted by the finance act, 2017, w.e.f. 26th May, 2017. Prior to its substitution, clause (ba), as inserted by the competition (Amendment) Act, 2007, w.e.f. 12-10 -2007 read as under: “(ba) Appellate Tribunal” means the National Company Law Appellate Tribunal referred to in sub-section (1) of section 53A;] 1 The following Act of Parliament received the assent of the President on the 13th January, 2003 2 Substituted by the Finance Act, 2017, w.e.f. 26th May 2017. Prior to its substitution, clause (ba), as inserted by the competition (Amendment) Act, 2007, w.e.f. 12-10 -2007 read as under: “(ba) Appellate Tribunal” means the Competition Appellate Tribunal established under sub-section (1) of section 53A;] (1)  (c) “cartel” includes an association of producers, sellers, distributors, traders or service providers who, by agreement amongst themselves, limit, control or attempt to control the production, distribution, sale or price of, or, trade in goods or provision of services; (d) “Chairperson” means the Chairperson of the Commission appointed under sub-section (1) of section 9; (e) “Commission” means the Competition Commission of India established under sub-section(1) of section 7; (f) “consumer” means any person who— (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, whether such purchase of goods is for resale or for any commercial purpose or for personal use; (ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first-mentioned person whether such hiring or availing of services is for any commercial purpose or for personal use; (g) “Director General” means the Director General appointed under sub- section (1) of section 16 and includes any Additional, Joint, Deputy or Assistant Directors General appointed under that section; (h) “enterprise” means a person or a department of the Government, who or which is, or has been, engaged in any activity, relating to the produc- tion, storage, supply, distribution, acquisition or control of articles or goods, or the provision of services, of any kind, or in investment, or in the business of acquiring, holding, underwriting or dealing with shares, debentures or other securities of any other body corporate, either directly or through one or more of its units or divisions or subsidiaries, whether such unit or division or subsidiary is located at the same place where the enterprise is located or at a different place or at different places, but does not include any activity of the Government relatable to the sovereign functions of the Gov- ernment including all activities carried on by the departments of the Central Government dealing with atomic energy, currency, defence and space. (2) Explanation.-For the purposes of this clause,— (a) “activity” includes profession or occupation; (b) “article” includes a new article and “service” includes a new service; (c) “unit” or “division”, in relation to an enterprise, includes (i) a plant or factory established for the production, storage, supply, distribution, acquisition or control of any article or goods; (ii) any branch or office established for the provision of any service; (i) “goods” means goods as defined in the Sale of Goods Act, 1930 (8 of 1930) and includes— (A) products manufactured, processed or mined; (B) debentures, stocks and shares after allotment; (C) in relation to goods supplied, distributed or controlled in India, goods imported into India; (j) “Member” means a Member of the Commission appointed under sub- section (1) of section 9 and includes the Chairperson; (k) “notification” means a notification published in the Official Gazette; (l) “person” includes— (i) an individual; (ii) a Hindu undivided family; (iii) a company; (iv) a firm; (v) an association of persons or a body of individuals, whether incorporated or not, in India or outside India; (vi) any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956); (vii) any body corporate incorporated by or under the laws of a country outside India; (viii) a co-operative society registered under any law relating to co-operative societies; (ix) a local authority; (x) every artificial juridical person, not falling within any of the preceding sub-clauses; (m) “practice” includes any practice relating to the carrying on of any trade by a person or an enterprise; (n) “prescribed” means prescribed by rules made under this Act; (o) “price”, in relation to the sale of any goods or to the performance of any services, includes every valuable consideration, whether direct or indirect, or deferred, and includes any consideration which in effect relates to the sale of any goods or to the performance of any services although ostensibly relating to any other matter or thing; (3)  (p) “public financial institution” means a public financial institution specified under section 4A of the Companies Act, 1956 (1 of 1956) and includes a State Financial, Industrial or Investment Corporation; (q) “regulations” means the regulations made by the Commission under section 62; (r) “relevant market” means the market which may be determined by the commission with reference to the relevant product market or the relevant geographic market or with reference to both the markets; (s) “relevant geographic market” means a market comprising the area in which the conditions of competition for supply of goods or provision of services or demand of goods or services are distinctly homogenous and can be distinguished from the conditions prevailing in the neighbouring areas; (t) “relevant product market” means a market comprising all those products or services which are regarded as interchangeable or substitutable by the consumer, by reason of characteristics of the products or services, their prices and intended use; (u) “service” means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news or information and advertising; (v) “shares” means shares in the share capital of a company carrying voting rights and includes— (i) any security which entitles the holder to receive shares with voting rights; (ii) stock except where a distinction between stock and share is expressed or implied; (w) “statutory authority” means any authority, board, corporation, council, institute, university or any other body corporate, established by or under any Central, State or Provincial Act for the purposes of regulating production or supply of goods or provision of any services or markets therefor or any matter connected therewith or incidental thereto; (x) “trade” means any trade, business, industry, profession or occupation relating to the production, supply, distribution, storage or control of goods and includes the provision of any services; (y) “turnover” includes value of sale of goods or services; (z) words and expressions used but not defined in this Act and defined in the Companies Act, 1956 (1 of 1956) shall have the same meanings respectively assigned to them in that Act. (4)  CHAPTER II PROHIBITION OF CERTAIN AGREEMENTS, ABUSE OF DOMINANT POSITION AND REGULATION OF COMBINATIONS Prohibition of agreements Anti-competitive agreements 3. (1) No enterprise or association of enterprises or person or association of persons shall enter into any agreement in respect of production, supply, distribution, storage, acquisition or control of goods or provision of services, which causes or is likely to cause an appreciable adverse effect on competition within India. (2) Any agreement entered into in contravention of the provisions contained in subsection (1) shall be void. (3) Any agreement entered into between enterprises or associations of enterprises or persons or associations of persons or between any person and enterprise or practice carried on, or decision taken by, any association of enterprises or association of persons, including cartels, engaged in identi- cal or similar trade of goods or provision of services, which— (a) directly or indirectly determines purchase or sale prices; (b) limits or controls production, supply, markets, technical development, investment or provision of services; (c) shares the market or source of production or provision of services by way of allocation of geographical area of market, or type of goods or services, or number of customers in the market or any other similar way; (d) directly or indirectly results in bid rigging or collusive bidding, shall be presumed to have an appreciable adverse effect on competi- tion: Provided that nothing contained in this sub-section shall apply to any agreement entered into by way of joint ventures if such agreement increases efficiency in production, supply, distribution, storage, acquisition or control of goods or provision of services. Explanation.—For the purposes of this sub-section, “bid rigging” means any agree- ment, between enterprises or persons referred to in sub-section (3) engaged in identical or similar production or trading of goods or provision of services, which has the effect of eliminating or reducing competition for bids or adversely affecting or manipulating the process for bidding (4) Any agreement amongst enterprises or persons at different stages or levels of the production chain in different markets, in respect of production, supply, distribution, storage, sale or price of, or trade in goods or provision of services, including— (5)  (a) tie-in arrangement; (b) exclusive supply agreement; (c) exclusive distribution agreement; (d) refusal to deal; (e) resale price maintenance, shall be an agreement in contravention of sub-section (1) if such agreement causes or is likely to cause an appreciable adverse effect on competition in India. Explanation.—For the purposes of this sub-section,— (a) “tie-in arrangement” includes any agreement requiring a purchaser of goods, as a condition of such purchase, to purchase some other goods; (b) “exclusive supply agreement” includes any agreement restricting in any manner the purchaser in the course of his trade from acquiring or otherwise dealing in any goods other than those of the seller or any other person; (c) “exclusive distribution agreement” includes any agreement to limit, restrict or withhold the output or supply of any goods or allocate any area or market for the disposal or sale of the goods; (d) “refusal to deal” includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought; (e) “resale price maintenance” includes any agreement to sell goods on condition that the prices to be charged on the resale by the purchaser shall be the prices stipulated by the seller unless it is clearly stated that prices lower than those prices may be charged. (5) Nothing contained in this section shall restrict— (i) the right of any person to restrain any infringement of, or to impose reasonable conditions, as may be necessary for protecting any of his rights which have been or may be conferred upon him under— (a) the Copyright Act, 1957 (14 of 1957); (b) the Patents Act, 1970 (39 of 1970); (c) the Trade and Merchandise Marks Act, 1958 (43 of 1958) or the Trade Marks Act, 1999 (47 of 1999); (d) the Geographical Indications of Goods (Registration and Protection) Act, 1999 (48 of 1999); (e) the Designs Act, 2000 (16 of 2000); (f) the Semi-conductor Integrated Circuits Layout-Design Act, 2000 (37 of 2000); (ii) the right of any person to export goods from India to the extent to which the agreement relates exclusively to the production, supply, distribution or control of goods or provision of services for such export. (6)  Prohibition of abuse of dominant position Abuse of dominant position 4. 3[(1) No enterprise or group shall abuse its dominant position.] (2) There shall be an abuse of dominant position 4 [under sub-section (1), if an enterprise or a group].—- (a) directly or indirectly, imposes unfair or discriminatory— (i) condition in purchase or sale of goods or service; or (ii) price in purchase or sale (including predatory price) of goods or service. Explanation.— For the purposes of this clause, the unfair or discriminatory con- dition in purchase or sale of goods or service referred to in sub-clause (i) and unfair or discriminatory price in purchase or sale of goods (including predatory price) or service referred to in sub-clause (ii) shall not include such discriminatory condition or price which may be adopted to meet the competition; or (b) limits or restricts— (i) production of goods or provision of services or market therefor; or (ii) technical or scientific development relating to goods or services to the prejudice of consumers; or (c) indulges in practice or practices resulting in denial of market access 5[in any manner]; or (d) makes conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of such contracts; or (e) uses its dominant position in one relevant market to enter into, or protect, other relevant market. Explanation.—For the purposes of this section, the expression— (a) “dominant position” means a position of strength, enjoyed by an enterprise, in the relevant market, in India, which enables it to— (i) operate independently of competitive forces prevailing in the relevant market; or (ii) affect its competitors or consumers or the relevant market in its favour. (b) “predatory price” means the sale of goods or provision of services, at a. price which is below the cost, as may be determined by regulations, of production of the goods or provision of services, with a view to reduce com- petition or eliminate the competitors. 3 Subs. by Competition (Amendment) Act, 2007 for “No enterprise shall abuse its dominant position.” 4 Subs. by Competition (Amendment) Act, 2007 for “under sub-section (1), if an enterprise” 5 Ins. by Competition (Amendment) Act, 2007 (7) [(c)“group” shall have the same meaning as assigned to it in clause (b) of the 6 Explanation to section 5.] Regulation of combinations Combination 5. The acquisition of one or more enterprises by one or more persons or merger or amalgamation of enterprises shall be a combination of such enterprises and persons or enterprises, if— (a) any acquisition where— (i) the parties to the acquisition, being the acquirer and the enterprise, whose control, shares, voting rights or assets have been acquired or are being acquired jointly have,— (A) either, in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or (B) 7[in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India; or] (ii) the group, to which the enterprise whose control, shares, assets or voting rights have been acquired or are being acquired, would belong after the acquisition, jointly have or would jointly have,— (A) either in India, the assets of the value of more than rupees four thou sand crores or turnover more than rupees twelve thousand crores; or (B) 8[in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India; or] (b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, if— 6 Ins. by Competition (Amendment) Act, 2007 7 Subs. by Competition (Amendment) Act, 2007 for: “ in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or” 8 Subs. by Competition (Amendment) Act, 2007 for: “ in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or” (8)  (i) the enterprise over which control has been acquired along with the enterprise over which the acquirer already has direct or indirect control jointly have,— (A) either in India, the assets of the value of more than rupees one thousand crores or turnover more than rupees three thousand crores; or (B) 9[in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India; or] (ii) the group, to which enterprise whose control has been acquired, or is being acquired, would belong after the acquisition, jointly have or would jointly have,— (A) either in India, the assets of the value of more than rupees four thou sand crores or turnover more than rupees twelve thousand crores or (B) 10[in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees fifteen hundred crores in India; or] (c) any merger or amalgamation in which— (i) the enterprise remaining after merger or the enterprise created as a result of the amalgamation, as the case may be, have,— (A) either in India, the assets of the value of more than rupees one thou sand crores or turnover more than rupees three thousand crores; or (B) 11[in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars, including at least rupees five hundred crores in India, or turnover more than fifteen hundred million US dollars, including at least rupees fifteen hundred crores in India; or] 9 Subs. by Competition (Amendment) Act, 2007 for “ in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or” 10 Subs. by Competition (Amendment) Act, 2007 for “ in India or outside India, in aggregate, the assets of the value of more than two billion US dollars or turnover more than six billion US dollars; or” 11 Subs. by Competition (Amendment) Act, 2007 for “ in India or outside India, in aggregate, the assets of the value of more than five hundred million US dollars or turnover more than fifteen hundred million US dollars; or” (9)  (ii) the group, to which the enterprise remaining after the merger or the enter prise created as a result of the amalgamation, would belong after the merger or the amalgamation, as the case may be, have or would have,— (A) either in India, the assets of the value of more than rupees four-thou sand crores or turnover more than rupees twelve thousand crores; or (B) 12 [in India or outside India, in aggregate, the assets of the value of more than two billion US dollars, including at least rupees five hundred crores in India, or turnover more than six billion US dollars, including at least rupees Fifteen Hundred Crores in India Explanation.— For the purposes of this section,— (a) “control” includes controlling the affairs or management by— (i) one or more enterprises, either jointly or singly, over another enterprise or group; (ii) one or more groups, either jointly or singly, over another group or enterprise; (b) “group” means two or more enterprises which, directly or indirectly, are in a position to — (i) exercise twenty-six per cent or more of the voting rights in the other enterprise; or (ii) appoint more than fifty per cent of the members of the board of directors in the other enterprise; or (iii) control the management or affairs of the other enterprise; (c) the value of assets shall be determined by taking the book value of the assets as shown, in the audited books of account of the enterprise, in the financial year immediately preceding the financial year in which the date of proposed merger falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered propri- etor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout- design or similar other commercial rights, if any, referred to in sub-section (5) of section 3. Regulation of combinations 6. (1) No person or enterprise shall enter into a combination which causes or is likely to cause an appreciable adverse effect on competition within the relevant market in India and such a combination shall be void. 12 Subs. by Competition (Amendment) Act, 2007 for: “in India or outside India, the assets of the value of more than two billion US dollars or turn over more than six billion US dollars (10)  (2) Subject to the provisions contained in sub-section (1), any person or enterprise, who or which proposes to enter into a combination, 13 [shall] give notice to the Commission, in the form as may be specified, and the fee which may be determined, by regulations, disclosing the details of the proposed combination, within14 [thirty days] of— (a) approval of the proposal relating to merger or amalgamation, referred to in clause (c) of section 5, by the board of directors of the enterprises concerned with such merger or amalgamation, as the case may be; (b) execution of any agreement or other document for acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (b) of that section. [(2A)No combination shall come into effect until two hundred and ten days have 15 passed from the day on which the notice has been given to the Commission under sub-section(2) or the Commission has passed orders under section 31, which- ever is earlier.] (3) The Commission shall, after receipt of notice under sub-section (2), deal with such notice in accordance with the provisions contained in sections 29, 30 and 31. (4) The provisions of this section shall not apply to share subscription or financing facility or any acquisition, by a public financial institution, foreign institutional investor, bank or venture capital fund, pursuant to any covenant of a loan agreement or investment agreement. (5) The public financial institution, foreign institutional investor, bank or venture capital fund, referred to in sub-section (4), shall, within seven days from the date of the acquisition, file, in the form as may be specified by regulations, with the Commission the details of the acquisition including the details of control, the circumstances for exercise of such control and the consequences of default arising out of such loan agreement or investment agreement, as the case may be. Explanation.—For the purposes of this section, the expression— (a) “foreign institutional investor” has the same meaning as assigned to it in clause (a) of the Explanation to section 115AD of the Income-tax Act, 1961(43 of 1961); (b) “venture capital fund” has the same meaning as assigned to it in clause (b) of the Explanation to clause (23 FB) of section 10 of the Income-tax Act, 1961(43 of 1961);. 13 Subs. by Competition (Amendment) Act, 2007 for “may, at his or its option” 14 Subs. by Competition (Amendment) Act, 2007 for “seven days”. Vide notification no. SO 2039(E), dated 29th June, 2017 exemption has been given to person or enterprise(s) who is a party to combination from giving notice within 30 days. 15 Ins. by Competition (Amendment) Act, 2007 (11)  CHAPTER III COMPETITION COMMISSION OF INDIA Establishment of Commission 7. (1) With effect from such date as the Central Government may, by notification, appoint, there shall be established, for the purposes of this Act, a Commission to be called the “Competition Commission of India”. (2) The Commission shall be a body corporate by the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued. (3) The head office of the Commission shall be at such place as the Government may decide from time to time. (4) The Commission may establish offices at other places in India. Composition of Commission [8.(1) The Commission shall consist of a Chairperson and not less than two and 16 not more than six other Members to be appointed by the Central Government. (2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who has special knowledge of, and such professional experience of not less than fifteen years in, international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters, including competition law and policy, which in the opinion of the Central Government, may be useful to the Commission. (3) The Chairperson and other Members shall be whole-time Members.] Subs. by Competition (Amendment) Act, 2007 for ; 16 (1) The Commission shall consist of a Chairperson and not less than two and not more than ten other Members to be appointed by the Central Government: Provided that the Central Government shall appoint the Chairperson and a Member during the first year of the establishment of the Commission. (2) The Chairperson and every other Member shall be a person of ability, integrity and standing and who has been, or is qualified to be a judge of a High Court, or, has special knowledge of, and professional experience of not less than fifteen years in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs, administration or in any other matter which, in the opinion of the Central Government may be useful to the Commission. (3) The Chairperson and other Members shall be whole-time Members.” (12) 17 [Selection Committee for Chairperson and Members of Commission] [9.(1) 18 The Chairperson and other Members of the Commission shall be appointed by the Central Government from a panel of names recommended by a Selection Committee consisting of – a) the Chief Justice of India or his nominee - Chairperson b) the Secretary in the Ministry of Corporate Affairs - Member c) the Secretary in the Ministry of Law and Justice - Member d) two experts of repute who have special knowledge of, and professional experience in international trade, economics, business, commerce, law, finance, accountancy, management, industry, public affairs or competition matters including competition law and policy (2) The term of the Selection Committee and the manner of selection of panel of names shall be such as may be prescribed.] Term of office of Chairperson and other Members 10. (1) The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office and shall be eligible for re-appointment: [Provided that the Chairperson or other Members shall not hold office as 19 such after he has attained the age of sixty-five years] (2) A vacancy caused by the resignation or removal of the Chairperson or any other Member under section 11 or by death or otherwise shall be filled by fresh appointment in accordance with the provisions of sections 9. (3) The Chairperson and every other Member shall, before entering upon his office, make and subscribe to an oath of office and of secrecy in such form, manner and before such authority, as may be prescribed. (4) In the event of the occurrence of a vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior- most Member shall act as the Chairperson, until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office. 17 Subs. by Competition (Amendment) Act, 2007 for “Selection of Chairperson and other Members” 18 Subs. by Competition (Amendment) Act, 2007 for: “The Chairperson and other Members shall be selected in the manner as may be prescribed.” 19 Subs. by Competition (Amendment) Act, 2007 for: “Provided that no Chairperson or other Member shall hold office as such after he has attained- (a) in the case of the Chairperson, the age of sixty-seven years; (b) in the case of any other Member, the age of sixty-five years.” (13)  (5) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most Member shall discharge the functions of the Chairperson until the date on which the Chairperson resumes the charge of his functions. Resignation, removal and suspension of Chairperson and other members 11. (1) The Chairperson or any other Member may, by notice in writing under his hand addressed to the Central Government, resign his office: Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of his term of office, whichever is the earliest. (2) Not with standing anything contained in sub-section (1), the Central Government may, by order, remove the Chairperson or any other Member from his office if such Chairperson or Member, as the case may be,— (a) is, or at any time has been, adjudged as an insolvent; or (b) has engaged at any time, during his term of office, in any paid employment; or (c) has been convicted of an offence which, in the opinion of the Central Government, involves moral turpitude; or (d) has acquired such financial or other interest as is likely to affect prejudicially his functions as a Member; or (e) has so abused his position as to render his continuance in office prejudicial to the public interest; or (f) has become physically or mentally incapable of acting as a Member. (3) Not with standing anything contained in sub-section (2), no Member shall be removed from his office on the ground specified in clause (d) or clause (e) of that subsection unless the Supreme Court, on a reference being made to it in this behalf by the Central Government, has, on an inquiry, held by it in accordance with such procedure as may be prescribed in this behalf by the Supreme Court, reported that the Member, ought on such ground or grounds to be removed. Restriction on employment of Chairperson and other Members in certain cases 12. The Chairperson and other Members shall not, for a period of 20 [two years] from the date on which they cease to hold office, accept any employment in, or connected with the management or administration of, any enterprise which has been a party to a proceeding before the Commission under this Act: 20 Subs. by Competition (Amendment) Act, 2007 for “one year” (14) Provided that nothing contained in this section shall apply to any employment under the Central Government or a State Government or local authority or in any statutory authority or any corporation established by or under any Central, State or Provincial Act or a Government company as defined in section 617 of the Companies Act, 1956 (1 of 1956). 21 [Administrative powers of Chairperson] [13. The Chairperson shall have the powers of general superintendence, 22 direction and control in respect of all administrative matters of the Commission: Provided that the Chairperson may delegate such of his powers relating to administrative matters of the Commission, as he may think fit, to any other Member or officer of the Commission.”] Salary and allowances and other terms and conditions of service of Chairperson and other Members 14. (1) The salary, and the other terms and conditions of service, of the Chairperson and other Members, including travelling expenses, house rent allowance and conveyance facilities, sumptuary allowance and medical facilities shall be such as may be prescribed. (2) The salary, allowances and other terms and conditions of service of the Chairperson or a Member shall not be varied to his dis advantage after appointment. Vacancy, etc. not to invalidate proceedings of Commission 15. No act or proceeding of the Commission shall be invalid merely by reason of— (a) any vacancy in, or any defect in the constitution of, the Commission; or (b) any defect in the appointment of a person acting as a Chairperson or as a Member; or (c) any irregularity in the procedure of the Commission not affecting the merits of the case. 21 Subs. by Competition (Amendment) Act, 2007 for “Financial and administrative powers of Member Administration” 22 Subs. by Competition (Amendment) Act, 2007 for: “The Central Government shall designate any Member as Member Administration who shall exercise such financial and administrative powers as may be vested in him under the rules made by the Central Government: Provided that the Member Administration shall have authority to delegate such of his financial and administrative powers as he may think fit to any other officer of the Commission subject to the condition that such officer shall, while exercising such delegated powers continue to act under the direction, superintendence and control of the Member Administration.” (15) Appointment of Director General, etc. 16. 23 [(1) The Central Government may, by notification, appoint a Director General for the purposes of assisting the Commission in conducting inquiry into contravention of any of the provisions of this Act and for performing such other functions as are, or may be, provided by or under this Act. (1A) The number of other Additional, Joint, Deputy or Assistant Directors General or such officers or other employees in the office of Director General and the manner of appointment of such Additional, Joint, Deputy or Assistant Directors General or such officers or other employees shall be such as may be prescribed.”] (2) Every Additional, Joint, Deputy and Assistant Directors General or [such officers or other employees,] shall exercise his powers, and 24 discharge his functions, subject to the general control, supervision and direction of the Director General. (3) The salary, allowances and other terms and conditions of service of the Director General and Additional, Joint, Deputy and Assistant Directors General or, 25 [such officers or other employees,] shall be such as may be prescribed. (4) The Director General and Additional, Joint, Deputy and Assistant Directors General or 26[such officers or other employees,] shall be appointed from amongst persons of integrity and outstanding ability and who have experience in investigation, and knowledge of accountancy, management, business, public administration, international trade, law or economics and such other qualifications as may be prescribed. 23 Subs. by Competition (Amendment) Act, 2007 for : “ The Central Government may, by notification, appoint a Director General and as many Additional, Joint, Deputy or Assistant Directors General or such other advisers, consultants or officers, as it may think fit, for the purposes of assisting the Commission in conducting inquiry into contravention of any of the provisions of this Act and for the conduct of cases before the Commission and for performing such other functions as are, or may be, provided by or under this Act” 24 Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants and officers,” 25 Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants and officers,” 26 Subs. by Competition (Amendment) Act, 2007 for “such other advisers, consultants and officers,” (16)  [Appointment of Secretary, experts, professionals and officers and other 27 employees of Commission] [17. (1) The Commission may appoint a Secretary and such officers 28 and other employees as it considers necessary for the efficient performance of its functions under this Act. (2) The salaries and allowances payable to and other terms and conditions of service of the Secretary and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed. (3) The Commission may engage, in accordance with the procedure specified by regulations, such number of experts and professionals of integrity and outstanding ability, who have special knowledge of, and experience in, economics, law, business or such other disciplines related to competition, as it deems necessary to assist the Commission in the discharge of its functions under this Act.] 27 Subs. by Competition (Amendment) Act, 2007 for “Registrar and officers and other employees of Commission” 28 Subs. by Competition (Amendment) Act, 2007 for: (1) The Commission may appoint a Registrar and such officers and other employees as it considers necessary for the efficient performance of its functions under this Act (2) The salaries and allowances payable to and other terms and conditions of service of the Registrar and officers and other employees of the Commission and the number of such officers and other employees shall be such as may be prescribed.” (17)  CHAPTER IV DUTIES, POWERS AND FUNCTIONS OF COMMISSION Duties of Commission 18. Subject to the provisions of this Act, it shall be the duty of the Commission to eliminate practices having adverse effect on competition, promote and sustain competition, protect the interests of consumers and ensure freedom of trade carried on by other participants, in markets in India: Provided that the Commission may, for the purpose of discharging its duties or performing its functions under this Act, enter into any memorandum or arrangement with the prior approval of the Central Government, with any agency of any foreign country. Inquiry into certain agreements and dominant position of enterprise 19. (1) The Commission may inquire into any alleged contravention of the provisions contained in subsection (1) of section 3 or sub-section (1) of section 4 either on its own motion or on— (a) 29[receipt of any information, in such manner and] accompanied by such fee as may be determined by regulations, from any person, consumer or their association or trade association; or (b) a reference made to it by the Central Government or a State Government or a statutory authority. (2) Without prejudice to the provisions contained in sub-section (1), the powers and functions of the Commission shall include the powers and functions specified in sub-sections (3) to (7). (3) The Commission shall, while determining whether an agreement has an appreciable adverse effect on competition under section 3, have due regard to all or any of the following factors, namely:— (a) creation of barriers to new entrants in the market; (b) driving existing competitors out of the market; (c) foreclosure of competition by hindering entry into the market; (d) accrual of benefits to consumers; (e) improvements in production or distribution of goods or provision of services; or (f) promotion of technical, scientific and economic development by means of production or distribution of goods or provision of services. 29 Subs. by Competition (Amendment) Act, 2007 for “receipt of a complaint,” (18) (4) The Commission shall, while inquiring whether an enterprise enjoys a dominant position or not under section 4, have due regard to all or any of the following factors, namely:— (a) market share of the enterprise; (b) size and resources of the enterprise; (c) size and importance of the competitors; (d) economic power of the enterprise including commercial advantages over competitors; (e) vertical integration of the enterprises or sale or service network of such enterprises; (f) dependence of consumers on the enterprise; (g) monopoly or dominant position whether acquired as a result of any statute or by virtue of being a Government company or a public sector undertaking or otherwise; (h) entry barriers including barriers such as regulatory barriers, financial risk, high capital cost of entry, marketing entry barriers, technical entry barriers, economies of scale, high cost of substitutable goods or service for consumers; (i) countervailing buying power; (j) market structure and size of market; (k) social obligations and social costs; (I) relative advantage,by way of the contribution to the economic development, by the enterprise enjoying a dominant position having or likely to have an appreciable adverse effect on competition; (m) any other factor which the Commission may consider relevant for the inquiry. (5) For determining whether a market constitutes a “relevant market” for the purposes of this Act, the Commission shall have due regard to the “relevant geographic market’’ and “relevant product market”. (6) The Commission shall, while determining the “relevant geographic market”, have due regard to all or any of the following factors, namely:— (a) regulatory trade barriers; (b) local specification requirements; (c) national procurement policies; (d) adequate distribution facilities; (e) transport costs; (f) language; (g) consumer preferences; (h) need for secure or regular supplies or rapid after-sales services. (19) (7) The Commission shall, while determining the “relevant product market”, have due regard to all or any of the following factors, namely:— (a) physical characteristics or end-use of goods; (b) price of goods or service (c) consumer preferences; (d) exclusion of in-house production; (e) existence of specialised producers; (f) classification of industrial products. Inquiry into combination by Commission 20. (1) The Commission may, upon its own knowledge or information relating to acquisition referred to in clause (a) of section 5 or acquiring of control referred to in clause (b) of section 5 or merger or amalgamation referred to in clause (c) of that section, inquire into whether such a combination has caused or is likely to cause an appreciable adverse effect on competition in India: Provided that the Commission shall not initiate any inquiry under this subsection after the expiry of one year from the date on which such combination has taken effect. (2) The Commission shall, on receipt of a notice under sub-section (2) of section 6 30[***], inquire whether a combination referred to in that notice or reference has caused or is likely to cause an appreciable adverse effect on competition in India. (3) Not with standing anything contained in section 5, the Central Government shall, on the expiry of a period of two years from the date of commence- ment of this Act and thereafter every two years, in consultation with the Commission, by notification, enhance or reduce, on the basis of the wholesale price index or fluctuations in exchange rate of rupee or foreign currencies, the value of assets or the value of turnover, for the purposes of that section. (4) For the purposes of determining whether a combination would have the effect of or is likely to have an appreciable adverse effect on competition in the relevant market, the Commission shall have due regard to all or any of the following factors, namely:— (a) actual and potential level of competition through imports in the market (b) extent of barriers to entry into the market; (c) level of combination in the market; 30 The words “or upon receipt of a reference under sub-section (1) of section 21” omitted by Competi- tion (Amendment) Act, 2007 (20)  (d) degree of countervailing power in the market; (e) likelihood that the combination would result in the parties to the combination being able to significantly and sustainably increase prices or profit margins; (f) extent of effective competition likely to sustain in a market; (g) extent to which substitutes are available or arc likely to be available in the market; (h) market share, in the relevant market, of the persons or enterprise in a combination, individually and as a combination; (i) likelihood that the combination would result in the removal of a vigorous and effective competitor or competitors in the market; (j) nature and extent of vertical integration in the market; (k) possibility of a failing business; (I) nature and extent of innovation; (m) relative advantage, by way of the contribution to the economic development, by any combination having or likely to have appreciable adverse effect on competition; (n) whether the benefits of the combination outweigh the adverse impact of the combination, if any. Reference by statutory authority 21. (1) Where in the course of a proceeding before any statutory authority an issue is raised by any party that any decision which such statutory authority has taken or proposes to take is or would be, contrary to any of the provisions of this Act, then such statutory authority may make a reference in respect of such issue to the Commission: 31 [Provided that any statutory authority, may, suo motu, make such a reference to the Commission.] 32 [(2) On receipt of a reference under sub-section (1), the Commission shall give its opinion, within sixty days of receipt of such reference, to such statutory authority which shall consider the opinion of the Commission and thereafter, give its findings recording reasons therefor on the issues referred to in the said opinion.] 31 Ins. by Competition (Amendment) Act, 2007 32 Subs. by Competition (Amendment) Act, 2007 for: “ On receipt of a reference under sub-section (1), the Commission shall, after hearing the parties to the proceedings, give its opinion to such statutory authority which shall thereafter pass such order on the issues referred to in that sub-section as it deems fit: Provided that the Commission shall give its opinion under this section within sixty days of receipt of such reference.” (21)  [Reference by Commission] 33 [21A. (1) Where in the course of a proceeding before the Commission an 34 issue is raised by any party that any decision which, the Commission has taken during such proceeding or proposes to take, is or would be contrary to any provision of this Act whose implementation is entrusted to a statutory authority, then the Commission may make a reference in respect of such issue to the statutory authority: Provided that the Commission, may, suo motu, make such a reference to the statutory authority. (2) On receipt of a reference under sub-section (1), the statutory authority shall give its opinion, within sixty days of receipt of such reference, to the Commission which shall consider the opinion of the statutory authority, and thereafter give its findings recording reasons there for on the issues referred to in the said opinion.] 35 [Meetings of Commission] 36 [22. (1) The Commission shall meet at such times and places, and shall observe such rules and procedure in regard to the transaction of business at its meetings as may be provided by regulations. (2) The Chairperson, if for any reason, is unable to attend a meeting of the Commission, the senior-most Member present at the meeting, shall preside at the meeting. (3) All questions which come up before any meeting of the Commission shall be decided by a majority of the Members present and voting, and in the event of an equality of votes, the Chairperson or in his absence, the Member presiding, shall have a second or/casting vote: Provided that the quorum for such meeting shall be three Members.] 33 Ins. by the Competition (Amendment) Act, 2007 34 Ins. by the Competition (Amendment) Act, 2007 35 Subs. by the Competition (Amendment) Act, 2007 for “Benches of Commission” 36 Subs. by the Competition (Amendment) Act, 2007 for: (1) The jurisdiction, power and authority of the Commission may be exercised by Benches thereof. (2) The Benches shall be constituted by the Chairperson and each Bench shall consist of not less than two Members. (3) Every Bench shall consist of at least one Judicial Member. Explanation.—For the purposes of this sub-section, “Judicial Member” means a Member who is, or has been, or is qualified to be, a Judge of a High Court. (4) The Bench over which the Chairperson presides shall be the Principal Bench and the other Benches shall be known as the Additional Benches. (5) There shall be constituted by the Chairperson one or more Benches to be called the Mergers Bench or Mergers Benches, as the case may be, exclusively to deal with matters referred to in sections 5 and 6. (6) The places at which the Principal Bench, other Additional Bench or Mergers Bench shall ordinarily sit, shall be such as the Central Government may, by notification, specify.” (22) 37 23. [Omitted by the Competition (Amendment) Act, 2007] 38 24. [Omitted by the Competition (Amendment) Act, 2007] 39 25. [Omitted by the Competition (Amendment) Act, 2007] 37 Prior to omission, Section 23 read as under:- “ Distribution of business of Commission amongst Benches (1) Where any Benches are constituted, the Chairperson may, from time to time, by order, make provisions as to the distribution of the business of the Commission amongst the Benches and specify the matters, which may be dealt with by each Bench. (2) If any question arises as to whether any matter falls within the purview of the business allocated to a Bench, the decision of the Chairperson thereon shall be final. (3) The Chairperson may (i) transfer a Member from one Bench to another Bench , or (ii) authorize the Members of one Bench to discharge also the functions of the Members of other Bench: Provided that the Chairperson shall transfer, with the prior approval of the Central Government, a Member from one Bench situated in one city to another Bench situated in another city. (4) The Chairperson may, for the purpose of securing that any case or matter which, having regard to the nature of the questions involved, requires or is required in his opinion or under the rules made by the Central Government in this behalf, to be decided by a Bench composed of more than two Members issue such general or special orders as he may deem fit.” 38 Prior to omission Section 24 read as under: “ Procedure for deciding a case where Members of a Bench differ in opinion If the Members of a Bench differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members and such point or points shall be decided according to the opinion of the majority of the Members who have heard the case, including those who first heard it.” 39 Prior to omission, Section 25 read as under: “ Jurisdiction of Bench An inquiry shall be initiated or a complaint be instituted or a reference be made under this Act before a Bench within the local limits of whose jurisdiction— (a) the respondent, or each of the respondents, where there are more than one, at the time of the initiation of inquiry or institution of the complaint or making of reference, as the case may be, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the respondents, where there are more than one, at the time of the initiation of the inquiry or institution of complaint or making of reference, as the case may be, actually and voluntarily resides or carries on business or personally works for gain provided that in such case either the leave of the Bench is given, or the respondents who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation.—A respondent, being a person referred to in sub-clause (iii) or sub-clause (vi) or sub-clause (vii) or sub-clause (viii) of clause (1) of section 2, shall be deemed to carry on business at its sole or principal place of business in India or at its registered office in India or where it has also a subordinate office at such place.” (23) 40 [Procedure for inquiry under section 19] [26. (1) On receipt of a reference from the Central Government or a State 41 Government or a statutory authority or on its own knowledge or information received under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter: Provided that if the subject matter of an information received is, in the opinion of the Commission, substantially the same as or has been covered by any previous information received, then the new information may be clubbed with the previous information. (2) Where on receipt of a reference from the Central Government or a State Government or a statutory authority or information received under section 19, 40 Subs. by Competition (Amendment) Act, 2007 for “Procedure for inquiry on complaints under section 19” 41 Subs. by Competition (Amendment) Act, 2007 for: “ Procedure for inquiry on complaints under Section 19 (1) On receipt of a complaint or a reference from the Central Government or a State Government or a statutory authority or on its own knowledge or information, under section 19, if the Commission is of the opinion that there exists a prima facie case, it shall direct the Director General to cause an investigation to be made into the matter. (2) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings with in such period as may be specified by the Commission. (3) Where on receipt of a complaint under clause (a) of sub-section (1) of section 19, the Commission is of the opinion that there exists no prima facie case, it shall dismiss the complaint and may pass such orders as it may deems fit, including imposition of costs, if necessary. (4) The Commission shall forward a copy of the report referred to in sub-section (2) to the parties concerned or to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General relates on a complaint and such report recommends that there is no contravention of any of the provisions of this Act, the complainant shall be given an opportunity to rebut the findings of the Director General. (6) If, after hearing the complainant, the Commission agrees with the recommendation of the Director General, it shall dismiss the complaint. (7) If, after hearing the complainant, the Commission is of the opinion that further inquiry is called for, it shall direct the complainant to proceed with the complaint. (8) If the report of the Director General relates on a reference made under sub-section (/) and such report recommends that there is no contravention of the provisions of this Act, the Commission shall invite comments of the Central Government or the State Government or the statutory authority, as the case may be, on such report and on receipt of such comments, the Commission shall return the reference if there is no prima facie case or proceed with the reference as a complaint if there is a prima facie case. (9) If the report of the Director General referred to in sub-section (2) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.” (24)  the Commission is of the opinion that there exists no prima facie case, it shall close the matter forthwith and pass such orders as it deems fit and send a copy of its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (3) The Director General shall, on receipt of direction under sub-section (1), submit a report on his findings within such period as may be specified by the Commission. (4) The Commission may forward a copy of the report referred to in sub section(3) to the parties concerned: Provided that in case the investigation is caused to be made based on reference received from the Central Government or the State Government or the statutory authority, the Commission shall forward a copy of the report referred to in sub- section (3) to the Central Government or the State Government or the statutory authority, as the case may be. (5) If the report of the Director General referred to in sub-section (3) reco- mends that there is no contravention of the provisions of this Act, the Commission shall invite objections or suggestions from the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be, on such report of the Director General. (6) If, after consideration of the objections and suggestions referred to in sub section (5), if any, the Commission agrees with the recommendation of the Director General, it shall close the matter forthwith and pass such orders as it deems fit and communicate its order to the Central Government or the State Government or the statutory authority or the parties concerned, as the case may be. (7) If, after consideration of the objections or suggestions referred to in sub section (5), if any, the Commission is of the opinion that further investigations is called for, it may direct further investigation in the matter by the Director General or cause further inquiriy to be made by in the matter or itself proceed with further inquiry in the matter in accordance with the provisions of this Act. (8) If the report of the Director General referred to in sub-section (3) recommends that there is contravention of any of the provisions of this Act, and the Commission is of the opinion that further inquiry is called for, it shall inquire into such contravention in accordance with the provisions of this Act.] Orders by Commission after inquiry into agreements or abuse of dominant position 27. Where after inquiry the Commission finds that any agreement referred to in section 3 or action of an enterprise in a dominant position, is in contravention of section 3 or section 4, as the case may be, it may pass all or any of the following orders, namely:— (25)  (a) direct any enterprise or association of enterprises or person or association of persons, as the case may be, involved in such agreement, or abuse of dominant position, to discontinue and not to re-enter such agreement or discontinue such abuse of dominant position, as the case may be; (b) impose such penalty, as it may deem fit which shall be not more than ten percent of the average of the turnover for the last three preceding financial years, upon each of such person or enterprises which are parties to such agreements or abuse: 42 [Provided that in case any agreement referred to in section 3 has been entered into by a cartel, the Commission may impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty of up to three times of its profit for each year of the continuance of such agreement or ten percent. of its turnover for each year of the continuance of such agreement, whichever is higher.] 43 (c) [Omitted by Competition (Amendment) Act, 2007] (d) direct that the agreements shall stand modified to the extent and in the manner as may be specified in the order by the Commission; (e) direct the enterprises concerned to abide by such other orders as the Commission may pass and comply with the directions, including payment of costs, if any; 44 (f) [Omitted by Competition (Amendment) Act, 2007] (g) pass such other 45[order or issue such directions] as it may deem fit. 46 [Provided that while passing orders under this section, if the Commission comes to a finding, that an enterprise in contravention to section 3 or section 4 of the Act is a member of a group as defined in clause (b) of the Explanation to section 5 of the Act, and other members of such a group are also responsible for, or have contributed to, such a contravention, then it may pass orders, under this section, against such members of the group.] 42 Subs. by Competition (Amendment) Act, 2007 for: “ Provided that in case any agreement referred to in section 3 has been entered into by any cartel, the Commission shall impose upon each producer, seller, distributor, trader or service provider included in that cartel, a penalty equivalent to three times of the amount of profits made out of such agreement by the cartel or ten percent. of the average of the turnover of the cartel for the last preceding three financial years, whichever is higher;” 43 Prior to omission, Clause (c) of Section 27 read as under:- “award compensation to parties in accordance with the provisions contained in section 34;” 44 Prior to omission, Clause (c) of Section 27 read as under:- “recommend to the Central Government for the division of an enterprise enjoying dominant position;” 45 Subs. by Competition (Amendment) Act, 2007 for “order” 46 Ins. by Competition (Amendment) Act, 2007 (26) Division of enterprise enjoying dominant position 28 (1) The 47[Commission] may, notwithstanding anything contained in any other law for the time being in force, by order in writing, direct division of an enterprise enjoying dominant position to ensure that such enterprise does not abuse its dominant position. (2) In particular, and without prejudice to the generality of the foregoing powers, the order referred to in sub-section (1) may provide for all or any of the following matters, namely:— (a) the transfer or vesting of property, rights, liabilities or obligations; (b) the adjustment of contracts either by discharge or reduction of any liability or obligation or otherwise; (c) the creation, allotment, surrender or cancellation of any shares, stocks or securities; 48 (d) [Omitted by Competition (Amendment) Act, 2007] (e) the formation or winding up of an enterprise or the amendment of the memorandum of association or articles of association or any other instruments regulating the business of any enterprise; (f) the extent to which, and the circumstances in which, provisions of the order affecting an enterprise may be altered by the enterprise and the registration thereof; (g) any other matter which may be necessary to give effect to the division of the enterprise. (3) Notwithstanding anything contained in any other law for the time being in force or in any contract or in any memorandum or articles of association, an officer of a company who ceases to hold office as such in consequence of the division of an enterprise shall not be entitled to claim any compensation for such cesser. Procedure for investigation of combination 29. (1) Where the Commission is of the 49[prima facie] opinion that a combination is likely to cause, or has caused an appreciable adverse effect on competition within the relevant market in India, it shall issue a notice to show cause to the parties to combination calling upon them to respond within thirty days of the receipt of the notice, as to why investigation in respect of such combination should not be conducted. 47 Subs. by Competition (Amendment) Act, 2007 for “Central Government, on recommendation under clause(f) of section 27” 48 Prior to omission, clause (d) of sub-section(2) of section 28 read as under:- “the payment of compensation to any person who suffered any loss due to dominant position of such enterprise;” 49 Ins. by Competition (Amendment) Act, 2007 (27) 50 [1(A) After receipt of the response of the parties to the combination under sub- section (1), the Commission may call for a report from the Director General and such report shall be submitted by the Director General within such time as the Commission may direct.] (2) The Commission, if it is prima facie of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall, within seven working days from the date of receipt of the response of the parties to the combination, 51 [or the receipt of the report from Director General called under sub section (1A), whichever is later] direct the par- ties to the said combination to publish details of the combination within ten working days of such direction, in such manner, as it thinks appropriate, for bringing the combination to the knowledge or information of the public and persons affected or likely to be affected by such combination. (3) The Commission may invite any person or member of the public, affected or likely to be affected by the said combination, to file his written objections, if any, before the Commission within fifteen working days from the date on which the details of the combination were published under sub-section (2). (4) The Commission may, within fifteen working days from the expiry of the period specified in sub-section (3), call for such additional or other information as it may deem fit from the parties to the said combination. (5) The additional or other information called for by the Commission shall be furnished by the parties referred to in sub-section (4) within fifteen days from the expiry of the period specified in sub-section (4). (6) After receipt of all information and within a period of forty-five working days from the expiry of the period specified in sub-section (5), the Commission shall proceed to deal with the case in accordance with the provisions contained in section 31. 52 [Procedure in case of notice under sub-section (2) of section 6] [30. Where any person or enterprises has given a notice under sub-section (2) 53 of section 6, the Commission shall examine such notice and form its prima facie opinion as provided in sub-section (1) of section 29 and proceed as per provisions contained in that section.] 50 Ins. by Competition (Amendment) Act, 2007 51 Ins. by Competition (Amendment) Act, 2007 52 Subs. by Competition (Amendment) Act, 2007 for “Inquiry into disclosure under sub-section(2) of section 6” 53 Subs. by Competition (Amendment) Act, 2007 for: “Where any person or enterprise has given a notice under sub-section (2) of section 6. The Commission shall inquire— (a) whether the disclosure made in the notice is correct; (b) whether the combination has, or is likely to have, an appreciable adverse effect on competition.” (28) Orders of Commission on certain combinations 31. (1) Where the Commission is of the opinion that any combination does not, or is not likely to, have an appreciable adverse effect on competition, it shall, by order, approve that combination including the combination in respect of which a notice has been given under sub-section (2) of section 6. (2) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition, it shall direct that the combination shall not take effect. (3) Where the Commission is of the opinion that the combination has, or is likely to have, an appreciable adverse effect on competition but such adverse effect can be eliminated by suitable modification to such combination, it may propose appropriate modification to the combination, to the parties to such combination. (4) The parties, who accept the modification proposed by the Commission under subsection (3), shall carry out such modification within the period specified by the Commission. (5) If the parties to the combination, who have accepted the modification under subsection (4), fail to carry out the modification within the period specified by the Commission, such combination shall be deemed to have an appreciable adverse effect on competition and the Commission shall deal with such combination in accordance with the provisions of this Act. (6) If the parties to the combination do not accept the modification proposed by the Commission under sub-section (3), such parties may, within thirty working days of the modification proposed by the Commission, submit amendment to the modification proposed by the Commission under that sub-section. (7) If the Commission agrees with the amendment submitted by the parties under subsection (6), it shall, by order, approve the combination. (8) If the Commission does not accept the amendment submitted under sub section (6), then, the parties shall be allowed a further period of thirty working days within which such parties shall accept the modification proposed by the Commission under sub-section (3). (9) If the parties fail to accept the modification proposed by the Commission within thirty working days referred to in sub-section (6) or within a further period of thirty working days referred to in sub-section (8), the combination shall be deemed to have an appreciable adverse effect on competition and be dealt with in accordance with the provisions of this Act. (10) Where the Commission has directed under sub-section (2) that the combination shall not take effect or the combination is deemed to have an appreciable adverse effect on competition under sub-section (9), then, without prejudice to any penalty which may be imposed or any prosecu- tion which may be initiated under this Act, the Commission may order that (29)  (a) the acquisition referred to in clause (a) of section 5; or (b) the acquiring of control referred to in clause (b) of section 5; or (c) the merger or amalgamation referred to in clause (c) of section 5, shall not be given effect to: Provided that the Commission may, if it considers appropriate, frame a scheme to implement its order under this sub-section. (11) If the Commission does not, on the expiry of a period of 54[two hundred and ten days from the date of notice given to the Commission under sub-section (2) of section 6], pass an order or issue direction in accordance with the provisions of sub-section (1) or sub-section (2) or sub- section (7), the combination shall be deemed to have been approved by the Commission. Explanation.—For the purposes of determining the period of 55[two hundred and ten] days specified in this subsection, the period of thirty working days specified in sub-section (6) and a further period of thirty working days specified in sub- section (8) shall be excluded. (12) Where any extension of time is sought by the parties to the combination, the period of ninety working days shall be reckoned after deducting the extended time granted at the request of the parties. (13) Where the Commission has ordered a combination to be void, the acquisition or acquiring of control or merger or amalgamation referred to in section 5, shall be dealt with by the authorities under any other law for the time being in force as if such acquisition or acquiring of control or merger or amalgamation had not taken place and the parties to the combination shall be dealt with accordingly. (14) Nothing contained in this Chapter shall affect any proceeding initiated or which may be initiated under any other law for the time being in force. Acts taking place outside India but having an effect on competition in India 32. The Commission shall, notwithstanding that,— (a) an agreement referred to in section 3 has been entered into outside India;or (b) any party to such agreement is outside India; or (c) any enterprise abusing the dominant position is outside India; or (d) a combination has taken place outside India; or (e) any party to combination is outside India; or 54 Subs. by Competition (Amendment) Act, 2007 for: “ninety working days from the date of publication referred to in sub-section(2) of section 29” 55 Subs. by Competition (Amendment) Act, 2007 for ”ninety days” (30)  (f) any other matter or practice or action arising out of such agreement or dominant position or combination is outside India, have power to inquire 56[in accordance with the provisions contained in sections 19, 20, 26, 29 and 30 of the Act] into such agreement or abuse of dominant position or combination if such agreement or dominant position or combination has, or is likely to have, an appreciable adverse effect on competition in the relevant market in India 57[and pass such orders as it may deem fit in accordance with the provisions of this Act.] 58 [Power to issue interim orders] 59 [33. Where during an inquiry, the Commission is satisfied that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, temporarily restrain any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to such party, where it deems it necessary.] 56 Ins. by the Competition (Amendment) Act, 2007 57 Ins. by the Competition (Amendment) Act, 2007 58 Subs. by the Competition (Amendment) Act, 2007 for “Power to grant interim relief” 59 Subs. by the Competition (Amendment) Act, 2007 for: (1) Where during an inquiry before the Commission, it is proved to the satisfaction of the Commission, by affidavit or otherwise, that an act in contravention of sub-section (1) of section 3 or sub-section (1) of section 4 or section 6 has been committed and continues to be committed or that such act is about to be committed, the Commission may, by order, grant a temporary injunction restraining any party from carrying on such act until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary. (2) Where during the inquiry before the Commission it is proved to the satisfaction of the Commission by affidavit or otherwise that import of any goods is likely to contravene sub- section (1) of section 3 or subsection (1) of section 4 or section 6, it may, by order, grant a temporary injunction restraining any party from importing such goods until the conclusion of such inquiry or until further orders, without giving notice to the opposite party, where it deems it necessary and a copy of such order granting temporary injunction shall be sent to the concerned authorities. (3) The provisions of rules 2A to 5 (both inclusive) of Order XXXIX of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall, as far as may be, apply to a temporary injunction issued by the Commission under this Act, as they apply to a temporary injunction issued by a civil court, and any reference in any such rule to a suit shall be construed as a reference to any inquiry before the Commission. (31) 60 34. [Omitted by the Competition (Amendment) Act, 2007] (39 of 2007 with effect from 12th October 2007) Appearance before Commission 35. A 61[person or an enterprise] or the Director General may either appear in person or authorise one or more chartered accountants or company secre- taries or cost accountants or legal practitioners or any of his or its officers to present his or i ts case before the Commission. Explanation.—For the purposes of this section,— (a) “chartered accountant” means a chartered accountant as defined in clause (b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949) and who has obtained a certificate of practice under