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Judgment
THE applicant/complainant has moved this application under Section 13 of the Monopolies and Restrictive Trade Practices Act, 1969 (the MRTP Act for brief), read with Regulations 64 and 65 of the Monopolies and Restrictive Trade Practices Commission Regulations, 1991 (the Regulations for brief), and Section 151 of the Code of Civil Procedure, 1908 (the CPC for brief), for directing the Customs Authorities to take due cognizance of the order passed by this Commission on 24th April, 1998 and to implement the said order in relation to any/all shipments of Chinese Soda Ash imported into India, to direct the Customs Authorities to clear the current and future shipments of Chinese Soda Ash imported into India in accordance with the order of this Commission passed on 24th April, 1998 at a price not below the fair and normal value, to implead the proposed respondents, namely, the Chairman, Central Board of Excise and Customs and the Commissioner of Customs, Bombay, Kandla and Haldia as parties to RTPE No. 238/97 as respondent Nos. 3, 4, 5 and 6 and to pass any and further orders that this Commission may deem fit and proper in the just circumstances of the case and in the interests of justice. Both the respondents have filed their respective replies and have resisted this application on various grounds.
THE applicant was placed before the Bench comprising the Chairman and learned Member Mr. R.K. Anand on 6th May, 1999. After the exploratory nature of hearing, by the order passed by the said Bench on 6th May, 1999 it was found that it would be better that the matter was heard by a Bench of which one of us (learned Member Shri Sardar Ali) is a Member. That is how the matter has been placed before this Bench on 13th May, 1991 for hearing. From the exploratory nature of hearing, the present application was thought to be a review application. It is however difficult to style it as a review application for the simple reason that no review is sought of the order passed by this Commission on 24th April, 1998. What is sought to be done is to supply the omission as to what is the fair and normal value of Soda Ash to be imported into India by the Chinese cartel.
Both learned Advocates Dr. Julian for respondent No. 1 and Mr. Verma for respondent No. 2 have strenuously urged before us that the present application is not maintainable in law. They have submitted that the first three reliefs could not be granted by this Commission as this Commission does not exercise nor is this Commission invested with the powers under Article 226 of the Constitution of India. They have further urged that no relief whatsoever has been claimed in this application for supply of the omission as to what the fair and normal value of Chinese Soda Ash would be for its import into India. They have further submitted that an appeal against the order passed by this Commission on 24th April, 1998 is pending before the Hon''ble Supreme Court, and as such it would not be proper on the part of this Commission to entertain this application in any form, much less as a review application. As against this, learned Counsel Mr. Jain for the applicant/complainant has fairly stated that he does not press the first three reliefs in this application. So far as the relief of supply of the omission as to what would be the fair and normal value of Chinese Soda Ash for its import in India is concerned, runs his submission, the omnibus prayer clause contained in the fourth prayer clause will certainly meet the requirement of law in accordance with well-settled principles of law in that regard.
RELYING on the binding ruling of the Hon''ble Supreme Court in the case of Mahindra and Mahindra Ltd. v. Union of India & Anr., reported in AIR 1979 Supreme Court at P. 798, learned Advocates Dr. Julian and Mr. Verma have urged that this review application is not maintainable for the simple reason that it is to be heard on the same material and no rehearing is permissible on the same material. We do not think that the rehearing is on account of the same material. This application has been filed in view of the fact that the Custom''s Authorities permit import at the price of US $ 110 per metric tonne and claiming guarantee for duty on the higher amount if it is so held ultimately. This is because of the fact that in its order of 24th April, 1998 this Commission has not clearly specified what is the fair and normal value of Chinese Soda Ash to be imported into India. The omission is sought to be supplied in view of the development of this circumstance and no rehearing is sought on the same material or on the same set of facts. With respect, the aforesaid binding ruling of the Hon''ble Supreme Court in the case of Mahindra and Mahindra (supra), is thus distinguishable on its own facts and is not found applicable in the present case. The binding ruling of the Hon''ble Supreme Court in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi, reported in AIR 1980 Supreme Court at P. 674, as relied on by and on behalf of the respondents, will also not come to the rescue of the respondents for the simple reason that it has been held therein that, where a glaring omission has crept in earlier by judicial fallibility, the review of the order could be sought. In that case, the Hon''ble Supreme Court has referred to the dictum of law pronounced by the Hon''ble Supreme Court in its ruling in the case of Sow. Chandra Kanta & Anr. v. Sheik Habib, reported in AIR 1975 Supreme Court at P. 1500. In its ruling in the case of Sow. Chandra Kanta & Anr. (supra), the Hon''ble Supreme Court has held : "A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility".
THIS application can be said to have been made under Section 152 of the C.P.C. It has inter alia been provided therein that errors arising therein from any accidental slip or omission may at any time be corrected by the Court either on its own motion or on the application of any of the parties. It thus becomes clear that the Court can suo moto correct its errors arising from any accidental slip or omission at any time. It can be corrected by an application from either party to a proceeding. The present applicant in this case has moved this Commission for correction of its errors arising from omission to specify the clear-cut fair and normal value of Chinese Soda Ash to be imported into it. It is true that the respondents have carried the aforesaid order passed by this Commission on 24th April, 1998 to the Hon''ble Supreme Court in appeal and it is pending before the Apex Court. That would certainly bar the review application in view of Section 114 read with Order XLVII Rule 1 of the C.P.C. However, the aforesaid provisions contained in Section 114 read with Order XLVII Rule 1 of the C.P.C. would not bar the present application in view of the binding ruling of the Hon''ble Supreme Court in the case of Mahindra and Mahindra (supra). It has been held therein that the powers of this Commission under Section 13(2) of the MRTP Act are wider in scope than the relevant provisions contained in Section 114 read with Order XLVII Rule 1 of the C.P.C. Besides, this application need not be styled as an application for review under the aforesaid statutory provisions but an application for correction of errors having arisen from accidential slips or omission in the order passed by this Commission on 24th April, 1998 inasmuch as no clear-cut fair and nominal value of Chinese Soda Ash to be imported into India has been specified. We do not agree with the submission urged before us by learned Counsel Mr. Jain for the applicant/complainant to the effect that this Commission has clearly held that normal price of Chinese Soda Ash to be US $ 150-160 per metric tonne. We are of the opinion that what is stated in the order in that context is in the nature of recording of submissions. In the operating order no such finding has been recorded.
IT transpires from the material on record that the respondents have not assisted this Commission with respect to the price of Chinese Soda Ash to be imported into India. The respondents have produced on record various invoices which are in Chinese language. The English translation of only two of these invoices has been provided at pages 243 and 249 of the counter affidavit. IT would transpire therefrom that the selling price of Soda Ash in China was US $ 132 per metric tonne. IT is obvious that the aforesaid price was for domestic purposes. The export price would certainly be slightly higher keeping in mind the margin of profit and certain other factors. IT would, therefore, be quite proper to consider the fair and normal price of Chinese Soda Ash to be imported into India at US $ 150 per metric tonne.
IN view of our aforesaid discussion, we think that the order passed by this Commission on 24th April, 1998 in this case deserves this clarification to the effect that import of Chinese Soda Ash into INdia need not be permitted below the fair and normal price of US $ 150 per metric tonne. We are unable to countenance the suggestion that it would operate against all manufacturers of Soda Ash in China. Even if it means so, this Commission has already declared that the respondents are trying to export to India Chinese Soda Ash at predatory prices at what is stated in this application lends support thereto. The respondents should therefore, be directed not to export into India Chinese Soda Ash below the price of US $ 150 per metric tonne.
In the result, this application is accepted to the aforesaid extent. It is hereby clarified that the respondents shall not be permitted to export into India any Chinese Soda Ash below the fair and normal value at the rate of US $ 150 per metric tonne and no import of Chinese Soda Ash should be permitted into India below the aforesaid fair and normal price. There shall be no order as to costs on the facts and in the circumstances of the case. Appeal disposed of.