The Competition Commission of India (CCI) has gone to the Supreme Court to curtail the powers of its own appellate tribunal in the case of SAIL v Jindal Steel, with senior advocates, Economic Laws Practice and Amarchand Mangaldas representing the parties.

Economic Laws Practice (ELP) partner Samir Gandhi said: “The appeal is the first of its kind and will be the first time the Supreme Court of India will be asked to look into certain provisions of the Act.”

In the case that there was an agreement for supply of railway equipment between the Indian Railways and SAIL which was allegedly anti-competitive and amounted to an abuse of dominance.

A prima facie case for investigation was then made by the CCI, recommending an investigation by the Director General (DG), which SAIL applied to the Competition Appeals Tribunal (COMPAT) to appeal against.

The COMPAT allowed the appeal and stayed the DG’s investigation while allowing SAIL to appeal from the commission’s prima facie opinion.

The COMPAT order dated 15 February held that the CCI could not be impleaded as a party in any appeals before it and the regulatory body was duty-bound to record reasons for recommending the initiation of an investigation.

The CCI’s present Supreme Court motion seeks to curtail the COMPAT’s power, alleging that its decision to intercede in a case that was ongoing was ultra-vires its statutory powers.

The CCI is arguing that COMPAT has not statutory right to grant a right to appeal against a prima facie order of the CCI. The CCI is understood to be claiming that the effect of allowing a COMPAT appeal at a stage when there has been no definitive finding which affects a party’s rights, would paralyse all proceedings before the Commission.

The appellate tribunal’s coram consisted of chairman Justice Arijit Pasayat and members Rahul Sarin and Pravin Tripathi.

Senior advocate Dushyant Dave, ELP Delhi-based partners Samir Gandhi and Tarun Gulati along with senior associate Neil Hildreth formed a team of lawyers for CCI.

Senior advocate Jagdeep Dhankar and advocates P K Basu Majumdar, Sunil Kumar Jha and Aneesh Mittal appeared for SAIL before the tribunal.

Senior advocate C A Sundaram, Amarchand Mangaldas Delhi partner Pallavi Shroff, advocates Shweta Shroff, Anandh Kumar and Harman Singh represented Jindal Steel.

A March Supreme Court judgement related to the appellate electricity tribunal and power company PTC India already curtailed the power of regulators’ appellate tribunals to challenge their regulators.

The case decided that the legislative functions of a regulatory commission are beyond the jurisdiction of the quasi-judicial powers of its appellate tribunal and should be dealt with via judicial review.