DHARMASHASTRA NATIONAL LAW UNIVERSITY

JABALPUR, MADHYA PRADESH

ECONOMICS -I

“CEMENT CARTEL IN INDIA”

Submitted by: Submitted to:

Kamod Patel Dr. Iram Hashmi
BALLB/043/2021 Teaching Associate Economics

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2nd Semester DNLU, Jabalpur

ACKNOWLEDGEMENT

I would like to take this opportunity to express special gratitude to my professor Dr. Iram
Hashmi as well as our V. Chancellor Dr. V Nagaraj who gave me the wonderful opportunity
to do this economic project on the topic
Cartelization in the cement industry. The opportunity to participate in this project has helped
me in improve my research skills

and I am really grateful to them. Thanks to this project I have learned many a thing about the
societal and well as economical drawbacks of cartels. And How administration and
governance, legal system etc., is approaching the issue.
I would also like to acknowledge Dr. Manwendra Tiwari for hir constant supervision over
the budding batch like ours in the law school.

Secondly, I would also like to thank my parents who helped me a lot in completing this
project on time.

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 TABLE OF CONTENT

Chapter I........................................................................................................................................................................1
Introduction................................................................................................................................................................. 1
Research Question.......................................................................................................................................................2
Research Objectives....................................................................................................................................................2
Research Methodology................................................................................................................................................2
Mode of Citation.........................................................................................................................................................2
Scope of research........................................................................................................................................................2
Chapter II......................................................................................................................................................................3
What is Cartelization?.................................................................................................................................................3
Understanding a Cartel................................................................................................................................................3
Types of Cartels..........................................................................................................................................................3
How do Cartels Cause Inefficiencies in the Market?...................................................................................................4
The Largest Cartel in the World..................................................................................................................................5
Advantages..................................................................................................................................................................5
Disadvantages.............................................................................................................................................................6
Chapter III..................................................................................................................................................................... 6
Market Regulatory Body in India: CCI (Competition Commission of India)..............................................................6
Watchdog for Antitrust................................................................................................................................................6
Regulatory body..........................................................................................................................................................7
Major Functions of the CCI.........................................................................................................................................8
Chapter IV..................................................................................................................................................................... 8
Cement Industry in India.............................................................................................................................................8
Cartelization in Cement Industry.................................................................................................................................9
The 2016 Development ............................................................................................................................................10
Case Analysis............................................................................................................................................................... 11
BUILDERS ASSOCIATION OF INDIA V. CEMENT MANUFACTURERS’ ASSOCIATION............................11
 Factual Background and Procedural History.....................................................................................................11
 Judgement.........................................................................................................................................................11
 Analysis.............................................................................................................................................................11
Impact of the Judgement in Contemporary times......................................................................................................12
Conclusion................................................................................................................................................................ 13

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CHAPTER I

Introduction

1
A cartel is a group of independent market participants who collude with each other in order
to improve their profits and dominate the market. Cartels are usually associations in the same
sphere of business, and thus an alliance of rivals. Most jurisdictions consider it anti-
competitive behavior and have outlawed such practices. Cartel behavior includes price
fixing, bid rigging, and reductions in output. The doctrine in economics that analyzes cartels
is cartel theory. Cartels are distinguished from other forms of collusion or anti-competitive
organization such as corporate mergers.

Over the past few years, the demand of cement has peaked. With the real estate and
construction sector booming, demand for cement is bullish. The surge in demand is followed
by a surge in the price of cement.
Only behind China, India is the second-largest cement production in the world. 1 million of
people are directly or indirectly employed by the cement business, which is a crucial
component of the Indian economy. Recent decisions by the Competition Commission of
India ("CCI") addressing claims of anticompetitive agreements and abuse of power among
cement makers under the Competition Act, 2002 (the "Act") resulted in a fine of more than
INR 60 billion (USD 1.1 billion).

The investigations arm of the Competition Commission of India (CCI) has held top
leadership – CEOs or managing directors – of Holcim units ACC and Ambuja, market
leader UltraTech and 17 other firms such as Shree Cement and Dalmia Cement liable for
antitrust violations. Cement companies have been accused of price-fixing for over a
decade. In 2016, the CCI imposed a $800 million fine on 10 companies for fixing prices,
including the Holcim units and UltraTech, but the decision has been challenged since then
at the Supreme Court.

In the 2016 ruling, the CCI had said the manufacturers association helped companies
collude, and ordered it to “disengage and disassociate itself from collecting” prices or
production-related details. Although cement prices vary across India, CCI’s report showed
they moved in the same direction. Overall, the CCI investigation report concluded the
cement companies colluded in 13 states in eastern and southern India, with more than 50
industry executives involved in “cartelisation” activities in an “extremely organised
manner”.

Apart from the contemporary happenings there are numerous landmark cases in which the
cartelisation of the cement industry came into the lime light one of such cases is the
Builders Association of India (BAI), who then filed a case with the Competition
1
Cartel, https://en.wikipedia.org/w/index.php?title=Cartel&oldid=1115047519 (last visited Oct.25, 2022).
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Commission of India (CCI), against the Cement Manufacturers’ Association (CMA) and
11 Indian cement manufacturing companies.

Research Question

 To study the impact and consequences of cartelization on any industry and on the market
prices.
 How cement market is being regulated by these particular big corporations and why
newcomers forbid to enter the market
 Government initiatives to cater the problem of cartelization in the cement industry.

Research Objectives

 Analyze oligopoly and the conditions that form cartels.

 Examine market-sharing cartels and their adverse impact.
 Scrutinize the measures taken to restrict unfair trade practices in the industry.
 Identify the role played by the Government in restricting the cartelization practices in
cement industry.

Research Methodology

I relied upon the analytical and doctrinal method of research for the project. In order to gain
essential and relevant details and outcomes of the research work, the researcher has
concentrated on collecting the data from the secondary source of information available
through various books, journals, case laws etc. I will also be referring to various researches
and surveys carried out on these issues.

Mode of Citation

The researcher has adopted a uniform mode of “blue book 20th edition” citation throughout
the project.

Scope of research

My project is covering the issue of cartelization specially among the Indian manufacturers. I
will be analyzing various case studies and researches carried out on this concerned topic. I
will emphasize how government tried to prevent the malpractices and way ahead.

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CHAPTER II

2
What is Cartelization?

A cartel is a group of separate companies or organisations that band together to fix prices on
goods or services. Cartels, which compete against one another in the same market, aim to
lessen that competition by coordinating price controls.

Cartels employ a variety of strategies, such as supply reduction, price fixing, collusive
bidding, and market carving. It is widely seen as being against the law and advocates of anti-
competitive behavior. The main ways in which the cartels harm consumers are by raising
prices and reducing transparency.

Understanding a Cartel

A monopoly, which occurs when one group or firm controls all or almost all of the market
for a certain good or service, has more control over an industry than a cartel. While some
cartels are established to control the cost of lawfully traded goods and services, others are
found in illicit markets like the drug trade. Because of American antitrust laws, almost all
cartels in the country are prohibited, regardless of their industry.
Because of higher costs and limited supply brought on by cartels, consumers suffer as a
result. The Competition Commission of India (CCI)'s  top policy goals is the identification
and dismantling of cartels.

3
Types of Cartels

2
What Are Cartels? How They Work, Examples, and Legality, https://www.investopedia.com/terms/c/cartel.asp (last visited Oct.25, 2022)..
3
Cartel, https://www.wallstreetmojo.com/cartel/(last visited Oct.25, 2022).
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1. Price cartels: Based on their demand-to-supply ratio, they set the minimum prices.
Products cannot be sold for less by members.

2. Term cartels: They frequently reach agreements on the terms of doing business. Each
participant is required to abide by the trading conditions. The delivery method, locations,
and timing, as well as the terms of payment and the charging of interest in case of
lateness, are all examples of terms of work.

3. Cartels that Assign Customers — Each member is given a certain customer. As a result,
each member receives a portion of each customer's business to ensure a proper revenue
flow. Each member must uphold the dignity of their allotment and refrain from bringing
in business for the other members.

4. Quota Cartels: Cartels with quotas are referred to as cartels. Such a partnership provides
a way to limit the supply of commodities, which raises market pricing. Each member may
produce up to the allotted quantum but not more.

5. Zonal Cartels: Each member of the cartel is given a specific region of the nation.
Members must make careful to operate just inside their designated zone.

6. Syndicate Cartels: A group of people band together to sell goods collectively and cut
production costs. These cartels seek to grow up their operations.

7. Super Cartels: These are elite multinational alliances. Domestic cartels collaborate with
cartels from other nations.

How do Cartels Cause Inefficiencies in the Market?

Cartels can be created to allocate trade zones, fix trade pricing, quantity, or terms, or gain
economies of scale. However, the member's increased earnings are not the result of more
producers' efforts or more production supplies. Instead, over time, these agreements render
the producers ineffective.
From the standpoint of the consumer, they are solely interested in the costs associated with a
certain product. Consequently, the creation of cartels has an impact on their overall
discretionary income.
The production capabilities of big companies aren't used to their full potential because the
supply is constrained by agreement. It's possible that the large-scale producers made more
and stopped selling their extra product on international markets. Super cartels, however,
temporarily impose restrictions on such further exports of products. As a result, economies of
scale gradually decline, which contributes to an increase in inflation.

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Commodity prices have been observed to rise dramatically as a result of cartel price
manipulation. Such price hikes are largely influenced by global cartels. These are however
limited by a small group of members who do not supply at the agreed price and do so at a
cheaper price. The consumers are then made aware of the production expense. These
individuals might also exceed the supply limit's maximum number.
Cartels are short-lived. The typical length might range between 5 and 8 years, roughly. The
governments of diverse nations, on the other hand, need some cartels to protect their
sovereignty. In this scenario, there can be no severe repercussions for any pricing
manipulation or problem.

The Largest Cartel in the World

The biggest cartel in the world is called the Organization of Petroleum Exporting Countries
(OPEC). It is an association of 13 oil-producing nations whose goal it is to stabilise the oil
markets by coordinating and harmonising national petroleum policy. Because OPEC is
protected by U.S. international trade rules, its operations are legal.

The U.S. Congress' attempt to sanction OPEC as an unlawful cartel was thwarted during the
dispute of the mid-2000s due to worries about retribution and potential harm to U.S. firms.
Although the majority of people believe OPEC to be a cartel, its members have insisted that
it is actually an international organisation with a legitimate, ongoing mission.

Advantages

 The member units receive monopoly-style authority from it.

 They can increase product margins and increase gross earnings.
 The expense of advertising is decreased, and clients may quickly learn about the goods.
 The participants' individual responses to the business cycle were unaffected.
 They can readily control production efficiency in accordance with supply limitations.
 Each cartel member is guaranteed a respectable margin.
 Through economies of scale, significant savings are made.

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Disadvantages

 Individual monopolies have an impact on consumers' disposable income.

 It causes market inefficiencies, which might have an impact on the final product's quality.
 It may have complete control over the individual, which would make other members
unstable.
 There is no incentive for the market to become more efficient. As a result, goods prices
continue to be high.
 According to consumer demands and other economies of scale, demand will change.
That, however, is unable to control the market.
 The individual participants are unable to expand their businesses.

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Chapter III

Market Regulatory Body in India: CCI (Competition Commission of India)

The Competition Commission of India (CCI), a statutory organisation established under the
Competition Act, 2002 with the main objective of regulating market competition, is crucial
in advancing consumer interests. Given the explosive expansion of the technology and e-
commerce sectors and the rise in mergers and acquisitions (M&As) across industries, the
CCI's work has taken on a significant relevance.

Watchdog for Antitrust

Seven years after the Competition Act, which aimed to encourage healthy competition, was
approved in 2002, CCI started operating. The organisation, which is sometimes referred to as
the anti-trust watchdog, is mandated to defend the Indian markets against player actions that
can noticeably harm competition.

4
What is the role of Competition Commission of India, https://www.moneycontrol.com/news/trends/legal-trends/explained-
what-is-the-role-of-competition-commission-of-india-9163841.html (last visited Oct 26, 2022 )
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This basically means that any agreement between similarly situated market actors or an
agreement across different hierarchical supply chain stages that may have an excessively
negative influence on the market should be prohibited, discouraged from happening, and
penalised by the body.

The CCI has the authority to take legal action against any company that takes unfair
advantage of its dominating market position. One may say that cartelization or some types of
exclusive distribution agreements are examples of agreements that are against the law on
competition. In essence, any behaviour among different categories of market participants that
may lead to price fixing, limiting production or supply, collusive bidding, etc. would be
considered to have a significant negative impact on the market and would provide a
justifiable basis for CCI's involvement.
To be clear, the end consumer whose interests CCI seeks to safeguard bears the brunt of any
anti-competitive action in the market.

Regulatory body

If the monetary threshold outlined in the statute is met, the competition law also mandates
that M&As between firms receive regulatory permission from CCI.
The approval of CCI is required for any arrangements that might result in the merger of
entities or the purchase of the control, voting rights, or assets of one company by another.
This is necessary to make sure that such a combination does not have a negative impact on
market competitiveness. As a result, a deal of this sort would need to be reported to CCI in
compliance with the conditions and limitations set forth by the legislation.
If a merger is likely to hurt competition and give the combined business a monopolistic hold
on the market, the commission has the power to amend the merger's plan or, in rare
situations, even to forbid it.
The transaction value barrier for alerting the CCI about a combination is suggested to be set
at Rs 2,000 crore in a bill intended to update the competition statute that is now being
reviewed. Additionally, it is desired to shorten the current 210-day deadline for CCI's
decision on the merger to 150 days in order to make M&As more efficient while still
adhering to the "ease of doing business" philosophy.

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Major Functions of the CCI

The Competition Act's preamble emphasises the need of preventing unfair business practises
and fostering healthy competition for the growth of the nation's economy. The CCI's duties
include:
 ensuring the maintenance of the customer's welfare and benefit in the Indian market.
 By encouraging fair and healthy competition in the country's economic activities, we can
achieve an economic growth that is both fast and inclusive.
 implementing competitive policies to ensure the effective use of the country's resources.
 The Commission also engages in advocating for competitiveness.
 It serves as the small business antitrust ombudsman as well.
 Any foreign firm that joins the Indian market through a merger or purchase will also be
closely examined by the CCI to make sure it complies with the Competition Act, 2002,
which governs competition in India.
 Additionally, CCI guarantees communication and collaboration with the other economic
regulatory bodies. This will guarantee that the sectoral regulatory legislation and the laws
governing competition are compatible.
 It also serves as a business facilitator by preventing market domination by a limited
number of companies and fostering harmonious coexistence between big and small
businesses.

Chapter IV

5
Cement Industry in India

One of the key industries that is essential to a country's development and progress is cement.
It is essentially a blend of substances made of calcium oxide, silica, aluminium oxide, and
iron oxide, mostly silicates and calcium aluminates. Cement demand is dependent on largely
on how quickly corporate, financial, real estate, and infrastructure sector activity are moving.
Worldwide, cement is used for all types of construction projects, including residential and
commercial building projects, as well as the development of infrastructure including ports,
highways, power plants, and other facilities. Due to positive trends like cost management
and ongoing technological advancement, the Indian cement industry is globally competitive.
The third-largest coal consumer in India is the cement sector, which uses a lot of energy. It is
cutting-edge and makes use of some of the greatest technologies available today.
Additionally, the business has a lot of room to grow because high-quality limestone can be
found practically everywhere in the nation.
5
Avinash Pareek, Dr. Satyam Pincha,: International Journal in Management and Social Science [Vol.03 Issue-08], (2015).
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6
Cartelization in Cement Industry

In June 2012, the Competition Commission of India (CCI) issued a strong statement
denouncing cartelization in the cement sector. levying a Rs 6,300 crore fine on the top 11
cement producers in India The worst affected of them have been penalised more than Rs
1000 crore each: ACC Ltd, Ambuja Cements Ltd, Ultra Tech Cement Ltd, and Jai Prakash
Associates Ltd. The investigation covered the fiscal years 2010 and 2011, and each of the 11
companies received fines equal to up to 50% of their average earnings for those years (Mint,
2012). The antitrust watchdog also punished the lobbying organisation Cement
Manufacturers Association in its unanimous verdict (CMA).
In response to a complaint made by the Builders Association of India (BAI), a lobbying
organisation of engineering and construction contractors, the commission looked into 39
cement businesses. The Builder's Association of India had claimed that the cement
businesses were engaging in cartelization through "price fixing" between 2009–2010 and
2010–2011, according to the CCI website. The committee then conducted an inquiry and
discovered that cement businesses had underutilised potential production capacity to limit
supplies and boost prices during periods of greater demand.
Companies like Ultratech, however, denied engaging in such behaviour and stated that they
intended to contact the Competition Appellate Tribunal and dissent from the ruling. The
units will fight the accusations made against them, according to Holcim Ltd., a Swiss
company that owns ACC and Ambuja. Even in the past, the nation's anti-monopoly
watchdog CCI (previously MRTPC) has been sending notices to the leading cement
manufacturing companies after its investigative arm Director General of Investigations and
Registrations (DGIR) had indicated cartelization and criticised Cement Manufacturers
Association for the exorbitant increase in prices. About 42 businesses, including the Cement
Manufacturers' Association, received notices from it in December 2007. After investigating
cement producers' charges of price-fixing and restrictive practises, the then-MRTPC enacted
restrictive procedures. Even still, the evidence was insufficient to establish the Cartel's
legitimacy.

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Dr. M.G. Deepika, Is there a cartel in cement industry in India?, Vol. 6, Iss. 1, Vidwat, (Feb to July 2013)
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7
The 2016 Development 8

The Competition Commission of India (CCI) issued a ruling in the case of the Builder's
Association of India (2016 Order) in August 2016 that mostly reaffirmed its prior decision in
the same subject from June 2012. (2012 Order).
For a little history, the lawsuit stemmed from a complaint made in 2010 against the Cement
Manufacturers' Association (CMA) and 11 Indian cement manufacturing businesses by the
Builders Association of India (BAI) (collectively, the Opposite Parties). Based on an
investigation it completed, the CCI fined the Opposing Parties INR 63.17 billion (about USD
933.68 million in June 2012.
This fine was levied for violating the pertinent sections of the Competition Act of 2002 by
utilising the CMA's platform to fix cement prices as well as to restrict and control the supply
of cement in the market (Act). Due process and breaches of natural justice principles were
the main arguments used to appeal this 2012 Order before the Competition Appellate
Tribunal (COMPAT), and it was upheld on these grounds. The CCI was given another
chance to decide the case. In light of this, the CCI heard the opposing parties again and
adopted the 2016 Order.
It is noteworthy that the 2016 Order, which imposed a fine equal to 0.5 times the Opposing
Parties' net earnings for the fiscal years 2009–2010 and 2010–2011 for violating the Act's
anti-cartel provisions, substantially confirmed the conclusions made in the 2012 Order. The
CCI also looked at the CMA's function and found that the Opposing Parties used the CMA
as a forum to share price-sensitive information on costs, pricing, production, and capacity.
The CCI also noted that the opposite parties' high profit margins and net profits compared to
the previous year's figures, as well as the lack of documentary proof of independent
behaviour, were important factors in determining that the opposite parties' change in prices
amounted to anti-competitive behaviour. The opposite parties' claim that the increase was
brought on by market forces, increased investment, and the burden of interest was rejected
by the CCI. In light of the aforementioned, the CCI came to the conclusion that the Opposing
Parties had formed a cartel in violation of the Act's provisions.
Several of the Opposing Parties have appealed the 2016 Ruling before the COMPAT,
notwithstanding the CCI's efforts to correct procedural mistakes in light of the COMPAT's
order. It can only be hoped that the COMPAT's decision will provide specific guidelines and
evidentiary thresholds for cartel findings, which are sufficient to justify the imposition of
such high economic penalties, as it is likely that the decision that will now be made by the
COMPAT will set the precedent for all future cartel investigations.

7
Cement giants face millions of dollars in fines as probe reveals massive collusion scheme in India, news 24.com (last visited Oct
29. 2022)
8
Cyril amarchan mangaldas, https://corporate.cyrilamarchandblogs.com/2016/11/curious-case-cement-cartel/, (last visited Oct 30,
2022)
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Case Analysis

BUILDERS ASSOCIATION OF INDIA V. CEMENT MANUFACTURERS’

ASSOCIATION

 Factual Background and Procedural History

A brief history of the case dates back in 2010, where the Builders Association of India
(BAI) filed a lawsuit against the Cement Manufacturers’ Association (CMA) and 11 Indian
cement manufacturers (collectively, the Opposite Parties). The CCI fined the Opposing
Parties INR 63.17 billion (about USD 933.68 million) in June 2012 after conducting an
investigation. Because the CMA’s platform was used to fix cement prices and restrict and
control cement production and supply, this fine was levied for a violation of the Competition
Act, 2002. (The Act). Competition Appellate Tribunal (COMPAT) dismissed the challenge
to the 2012 Order, citing due process and natural justice violations as the primary reasons for
the dismissal. The case has been sent back to the CCI for a new hearing. This led to a second
hearing by the CCI, which led to the 2016 Order

 Judgement

In this case, the CCI found that no single company or organization could exert any influence
over its competitors or customers because the cement industry was dominated by multiple
firms. Furthermore, because the Act did not include the concept of “collective dominance,”
the Defendants cannot even be considered to be in a dominant position as a group. As a
result, there was no need for an investigation into abuse. Regarding the anti-competitive
practice, CCI held that s. 3 (3)(a)1 and s. 3 (3)(b)2 read with s. 3(1)3 of the Act were found
to be violated by the Respondents. As a result, the Respondents will be required to deposit
the fines they were ordered to pay. Figure can be usually expressed as a percent of turnover
or net earnings, whichever one is greater.

 Analysis

S. 3(3)4 agreements are deemed to have a detrimental effect on competition in India if

concerted action is found to have taken place. In order to disprove this inference, the alleged
parties have the burden of proof. A company’s price, production, supply, changes that have
taken place and economic plan must all be right in light of this.5 To ensure that the interests
of its members and the sector they serve are protected, trade associations must have a
procedure in place that promotes fair competition as well. They need to pay attention to the
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debates and draw clear distinctions between what is considered pro and anti-competitive
behaviour. COMPAT highlighted that if CCI devised an equitable and fair system for
undertaking investigation and inquiry and giving orders, most of the appellate litigation will
be eliminated. As a result, the CCI should develop regulations for conducting inquiries and
accepting evidence in oligopolistic markets such as gasoline, steel, and autos.

9
Impact of the Judgement in Contemporary times

 Cartelization

To ensure fair competition in the country, the Competition Act, 2002 serves as the
principal law. The Act bans any action that unfairly benefits or disadvantages one party
over the other, which is always good for the economy. Keeping a watch on mergers and
acquisitions that might put the interests of consumers at risk is also a priority for the
agency. According to the Act, cartels are a group of producers, sellers and distributors of
products and services that aim to improve the manufacture, distribution, sale or pricing of
such goods and services by contract between themselves, as described in Section 2(c) of the
Act. Essentially, cartels are established when competing businesses in a market instead of
engaging in peaceful and equitable competition band together to manipulate the price or
output of commodities.

In addition to this, cartels may also deal with the allocation of certain markets or
consumer groups even amongst the members of the syndicate.

 Penalty Imposition

Certain parts of the Act provide the CCI the authority to impose fines where it is
determined that an unfair collaboration has significantly harmed competition. The CCI has
the power to impose sanctions on companies that conspire illegally to boost their profits at
the expense of consumers. Annually a cartel is active, the CCI has the authority under
Section 27 of the Act to impose penalties of up to three times the annual profit or up to 10%
of the annual turnover on each cartel participant. Nevertheless, the CCI does not usually
penalise cartel members. Other instructions can be given through it as well. Cartel members
can be ordered to stop their collusion by the Commission under Section 48 of the Act.
Those who violate the commission’s directives may face criminal or financial fines as well
as the commission’s authority to force agreements to be modified as necessary.

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The Indian Journal of management, Vidwat, (volume I issue 6), Feb - July 2013
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 10
Anti-competitive practice

Cartel-busting measures have been incorporated into the Indian Competition Law.
However, it is possible to define the right quantitative penalties for cartelization scenarios.
Additional criteria might be included in the Act to further clarify and standardise the level
of proof. Competition is severely harmed by cartelization, and measures must be taken to
stop it as soon as feasible.

Conclusion

As herein this case, the proof that the Opposing Parties’ price increases were anti-
competitive, the CCI cited issues such as their higher profit margins and net earnings in
comparison to the previous year’s numbers, as well as their lack of independent behaviour
documentation. Opponent Parties argued that such a rise was attributable to market
dynamics, more investment, and the interest load. The CCI disagreed with this position.
CCI decided that the Opposing Parties had formed a cartel in violation of the requirements
of the Act, based on this and other evidence.

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Competition law Case Analysis Competition Law and Policy Christ University
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