Rahul Sarin, Member - This matter has arisen before us on remand from the Hon'ble Supreme Court in Civil Appeal No. 4140 of 2006 against the order dated 27.09.2005 passed by the erstwhile Monopolies and Restrictive Trade Practices Commission (hereinafter referred to as "the Commission") in UTPE 433/1997. The Hon'ble Supreme Court vide its order dated 23rd June. 2010 remanded the matter to the National Consumer Disputes Redressal Commission (hereinafter referred to as "National Commission") for fresh hearing and decision in accordance with law. However, later the Hon'ble Supreme Court vide their order dated 19.11.2010 in LA. No. 5 in Civil Appeal No. 4140 of 2006 clarified their order dated 23rd June, 2010 and remanded the matter (UTPE No. 433/97 and Application No. 15/98) to the Competition Appellate Tribunal established under the Competition Act, 2002.

2. From a perusal of the Order of the Hon'ble Supreme Court passed on 23.06.2010, it becomes apparent that the impugned order of the MRTP Commission could not be sustained because the Commission has not adverted to the diverse aspects having bearing in the matter. The Hon'ble Supreme Court went further to state that particularly, the conditions of the contract have not at all been considered. The question as to whether delay or non-delivery of goods can be condemned as an unfair trade practice was required to be examined in the light of the law laid down by the Hon'ble Supreme Court which the Commission failed to do. Further, by that order, the Hon'ble Supreme Court also made it clear that all the contentions of the parties are kept open to be agitated.

3. In pursuance of the aforesaid order of the Hon'ble Supreme Court, this matter was heard at great length when submissions were made in detail by both the parties. However, before we advert to the consideration of the submissions of the parties made before us, it would be appropriate to briefly recount the salient facts of this case as under :

4. M/s. Absolute Aromatics Limited (hereinafter referred to as "the complainant/shipper") initiated two proceedings before the Commission, one by way of complaint under Sections 36, 36A, 36B and 36D read with Sections 2(i) and 10(a) (i) of the MRTP Act for instituting enquiry against M/s. British Airways World Cargo & Anr. (hereinafter referred to as "the respondent/carrier") for various monopolistic, restrictive and unfair trade practices and for passing 'Cease and Desist' order directing the Carrier not to repeat or continue similar practices and the other by way of application under Section 12B of the MRTP Act for award of compensation amounting to US $ 6,16,174.43.

5. The Shipper manufactures various products including Peppermint Oil. Based on the advertisements issued by the Carrier in various newspapers that they provide prompt, excellent and fast cargo services to international destinations, the Shipper claims to have booked 40 drums of Peppermint oil for export to M/s. Amigo & Arditi, Fernando De La Moard, Paraguay, through the Carrier's agent Trade Wings Ltd., New Delhi on 31.03.1997 vide Air Way Bill No. 125-5452-6566 (for short 'AWB 6566'). The airport of destination as per AWB 6566 was Sao Paulo but ultimately it was changed to Asuncion by the complainant/ shipper. The value of the goods was declared as US$ 1,00,0080.00 and the freight of Rs.9,79,130/- was paid by the Shipper to the Carrier. According to the Shipper, these goods were never delivered to the consignee. On April, 11, 1997 a second consignment of 40 drums of the Peppermint oil was booked with the Carrier vide Air Way Bill No. 125-5452-6570 (for short 'AWB 6570 for export to the same consignee. The value of the second consignment was also declared as US $ 1,00,080.00 and the freight of Rs. 9,79,130/- was paid. The airport of destination was Sao Paulo which was ultimately changed to Asuncion. The said consignment according to the Shipper was delayed and delivered to the consignee on June, 6, 1997. The Shipper averr