HARIDAS EXPORTS Vs. ALL INDIA FLOAT GLASS MFRS ASSN
SUPREME COURT OF INDIA
ALL INDIA FLOAT GLASS MANUFACTURS ASSOCIATION
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(1.)KIRPAL, C.J.I. :- Leave granted.
(2.)THESE appeals are against orders passed by the Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as the "MRTP Commission") whereby Indonesian manufacturers of float glass had been restrained from exporting the same to India at allegedly predatory prices.
Respondent No. 1 is an association of float glass manufacturers in India. During March-April, 1998, complaints were made by the said respondent to the Costoms Department, alleging that the Indonesian manufacturers of float glass, in association with Indian importers were allegedly indulging in heavy under-invoicing. The respondents were, however, informed by the Costoms Department in Calcutta that if they had any genuine grievance, the same could be made before the Designated Authority, Ministry of Commerce dealing with anti-dumping complaints. On 26/05/1998, the respondent No. 1 presented a complaint before the Designated Authority. this complaint appears to have been filed before the Anti-Dumping authority and the same was possibly not pursued by the complainant.
On 10/09/1998, the respondent No. 1 filed a complaint before the MRTP Commission under Section 33(1)(j), (ja) and Section 36A read with Section 2(o) of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the 'MRTP Act') against three Indonesian companies alleging that they were manufacturing float glass and were selling the same at predatory prices in India, and were hence resorting to restrictive and unfair trade practices. In the complaint, it was stated that the float glass of Indonesian origin was being exported into India at the CIF price of US$ 155 to 180 PMT. At this price, some float glass had been shipped into India during the period December, 1997, to June, 1998. It was alleged that these sale prices were predatory prices as they were less than not only the cost of production for the product in Indonesia but also the variable cost of production of the product. The complainant gave figures indicating the estimated cost of float glass internationally as well as the cost of production of float glass in India with a view to demonstrate that the Indian manfacturers of float glass would not be able to compete with the price at which the Indonesian manufacturers were presently selling or intending to sell to Indian consumers. On this basis, it was contended that the sale of float glass by the Indonesian manufacturers at the said price of US$ 155 to 180 PMT will restrict, distort and prevent competition by pricing out Indian producers from the market. This would result in lowering the production of the Indian industry and the consequent idle capacity and losses would force the industry to become sick which would lead its closure which would have a direct impact on the employment in the industry.
(3.)IN response to the notice issued to the INdonesian companies, M/s. P. T. Mulia INdustries (respondent No. 2 in this appeal) wrote a letter to the MRTP Commission stating that it had never in the past exported float glass to INdia. The other two respondents did not send any reply to the Commission. The appellant, however, which is the INdian importer of the float glass from INdonesia had filed a caveat before the Commission. It also filed a reply refusing the allegations of the respondent and it was the contention of the appellant that respondent No.1 was a cartel of INdian manufacturers of float glass which was, in fact, exporting out of INdia at prices far lower than their own cost of production in INdia. It was also contended by the appellant herein that the cost of production of float glass was lower in INdonesia than in INdia and float glass was not being exported to INdia at predatory prices.
The application under Section 12-A for interim injunction was heard by the Chairman of the Commission and a second Member. There was a difference of opinion amongst them. While the Chairman vide order dated 18/01/1999, allowed the application and restrained the Indonesian companies from exporting to India their float glass production at predatory prices, Dr. S. Chakravarthy, the second Member dismissed the application, inter alia, holding that there was no evidence to substantiate the plea of predatory pricing at this stage. By order dated 9/02/2000, the third Member who heard the case concurred with the view taken by the Chairman and passed an order of injunction against the Indonesian companies.
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