2026 Supreme(Online)(NCLAT) 438

NATIONAL COMPANY LAW APPELLATE TRIBUNAL
NARESH SALECHA, Technical Member
Keshav Bihani – Appellant
Versus
Competition Commission of India – Respondent
Competition App. (AT) No. 44 of 2022 & I.A. No. 3646, 3647, 3648 of 2022 | Competition App. (AT) No. 45 of 2022 & I.A. No. 3650, 3651, 3653 of 2022

Receipt of incriminating cartel emails without protest constitutes tacit participation; Section 48 penalties on individuals' income mirror firm turnover proportion under Section 27; Section 3(3) cartels presumed to cause AAEC.

Headnote:(A) Competition Act, 2002 - Sections 3(1), 3(3)(a), (b), (c), (d), 27, 48, 53B - Bid rigging cartel among approved vendors for protective tubes in railway tenders - Direct evidence via emails showing tender allocation, price fixing, share revisions, and withdrawal instructions - Receipt of incriminating emails without denial or protest over sustained period constitutes tacit agreement and participation in cartel - Penalty under Section 27 on firm’s turnover and under Section 48 on individual’s average annual income at same proportional rate (5%) legally valid pre-2023 amendment, as “punished accordingly” implies same proportion substituting income for turnover - Presumption of appreciable adverse effect on competition (AAEC) under Section 3(3) applies to such agreements, rebuttable by parties but not rebutted here - No AAEC inquiry needed post-establishment of Section 3(3) violation. (Paras 22-61)

(B) Competition Act, 2002 - Section 15, CCI Regulations - Absence of judicial member does not invalidate proceedings due to statutory protection under Section 15; cross-examination discretionary, not mandatory if no application filed - Reliance on undisclosed emails valid if certified under Evidence Act; non-supply of minor details does not vitiate order where core evidence furnished. (Paras 55, 59-60)

(C) Evidence - Cartel proof via preponderance of probability using direct (emails, leniency) and circumstantial evidence; conscious parallelism plus not required with explicit communications; market structure (oligopsony) irrelevant against direct proof. (Paras 26-27, 54)

Facts of the case:
Partnership firm and its partner appealed CCI orders imposing penalties for bid rigging cartel in railway tenders for polyacetal protective tubes from 2015-2020. Cartel exposed by leniency application revealing email coordination among seven Part I vendors for tender allocation (16.67%-14.30% shares to appellant firm post-July 2019), price determination, undercutting complaints, and bid withdrawals. Firm received 10 emails, 8 incriminating, without protest. CCI found contravention of Section 3(3), imposed 5% penalty on firm’s turnover under Section 27 and on partner’s income under Section 48.

Findings of Court:
Cartel established by direct email evidence and tacit acquiescence via non-denial; penalties proportionate and legal; no procedural infirmities; presumption of AAEC holds.

Issues: Validity of Section 48 proceedings pre-finding of firm’s contravention and on individual’s income; sufficiency of email evidence for cartel; AAEC absence; procedural lapses (judicial member, cross-examination, evidence disclosure).

Ratio Decidendi: Receipt of detailed cartel emails on tender shares/prices without objection over a year proves participation via tacit understanding; Section 48 penalty mirrors Section 27 proportion on income; Section 3(3) cartel presumed to cause/likely cause AAEC, shifting rebuttal burden unmet; appellate scrutiny upholds CCI findings absent perversity.

Result: Appeals dismissed.

Table of Content
1. factual background of cartel in railway tenders. (Para 1 , 38 , 39 , 41 , 42 , 51)
2. section 48 invocation requires prior company contravention finding. (Para 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12)
3. section 48 needs evidence of consent or neglect. (Para 13 , 14)
4. absence of judicial member does not invalidate cci orders. (Para 15 , 59)
5. non-disclosure of evidence violates natural justice. (Para 16 , 17 , 18 , 60)
6. penalties must consider proportionality and role. (Para 19)
7. emails prove bid-rigging cartel via tacit agreement. (Para 22 , 23 , 24 , 25 , 26 , 27 , 31 , 32 , 33 , 34 , 40 , 43 , 44 , 52 , 53 , 54 , 57 , 58)
8. rajasthan cylinders ratio inapplicable due to direct evidence. (Para 28 , 46 , 47 , 48)
9. emails admissible with section 65b certification. (Para 29 , 55)
10. section 48 penalty on individual's income proportional to firm turnover. (Para 30 , 56)
11. cross-examination discretionary under cci regulations. (Para 35 , 36 , 37)
12. section 3(3) cartel presumed to cause aaec. (Para 45 , 49 , 50)

J U D G E M E N T

(10.04.2026)

NARESH SALECHA, MEMBER (TECHNICAL)

1. There are two appeals containing Competition Appeal No. 44 of 2022 and Competition Appeal No. 45 of 2025 filed by the Appellants i.e. Keshav Bihani (the partner in M/s Hari Narayan Bihani) and M/s Hari Narayan Bihani (the firm in which Keshav Bihani is pending partner of M/s Hari Narayan Bihani) under section 53B of the Competition Act, 2002 ("Competition Act") read with 151 of the Civil Procedure Code, 1908 ("CPC") against impugned order under Section 27 of the Competition Act dated 09.06.2022 (received on 15.06.2022) (hereinafter referred to as "Impugned Order 1 '') read with order dated 22.06.2022 (received on 30.06.2022).

Competition Commission of India is the main contesting Respondent (Respondent No.1) in both the appeals herein.

M/s Hari Narayan Bihani is the Respondent No.2 in Competition Appeal No. 44 of 2022 herein.

2. The Appellants submitted that the initiation of proceedings under Section 48 of the Competition Act against the Appellants is inconsistent with the provisions of the Competition Act. The Appellants contended that, Section 48 of the Competition Act cannot be invoked for violations which do not provide for ‘imprisonment’. The Appellants stated that it is only in cases where the person committing a contravention is a company and such contravention/breach is ‘punishable’ with imprisonment that the CCI is required to initiate Section 48 and identify the ‘person’ who, at the time of contravention, was responsible for the conduct of business of the company. The Appellants argued that the present case did not fall in that category; therefore, the CCI’s invocation of Section 48 of the Competition against the Appellants was not only premature but also wholly illegal and beyond the provisions of the Competition Act and the intention of the legislature.

3. The Appellants further contended that, the contravention (punishable with ‘imprisonment’) has to be actually committed, i.e., there has to be an unambiguous and clear finding regarding the commission of contravention, and only after fulfilling the stage of finding a company in contravention is the CCI empowered to initiate proceedings under Section 48 of the Competition Act.

4. The Appellants stated that the CCI has to establish that the person in-charge of the conduct of the business was actually guilty of such contravention after undertaking effective analysis; thereafter, the CCI is obligated to issue a separate show-cause notice to such person and grant an opportunity to defend the charge and establish that the contravention was committed without his knowledge or that he exercised all due diligence. The Appellants argued that Section 48 does not provide for any ‘punishment’ and the imposition of punishment (and not penalty) has to be applied under the relevant section which has been contravened.

5. The Appellants submitted that the other reason why the CCI’s interpretat

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