ORDER
C.M. Nayar, J. (Chairman)
1. The applicant Madura Coats Limited has filed an application under Section 13(2) of the MRTP Act read with Rule 85 of the MRTPC Regulations
for revocation/amendment of the order dated 30th July, 2001.
2. The following order was passed on 30th July, 2001 :
“The complainant is aggrieved by the Circular dated 31st July, 1969 which may be reproduced as below ;
“As a high volume consumer of H.S.D., you will kindly appreciate the need for timely supply of this important input for uninterrupted running of your plant. In order to ensure this, and to make optimum use of our facilities, the Oil Industry has decided to make certain changes in the logistics of supplies which also involves a change in Supply Point to valued customers like you.
We would like to advise you that effective 1st September, 1989 your requirement of HSD will be met from Madurai Supply Point on delivered basis. By this arrangement, prompt and immediate supplies will be effectively ensured.’
The learned Counsel for the respondent has contended that the aforesaid Circular has been issued with the concurrence of the Ministry of Petroleum and is applicable to all customers of Indian Oil Corporation Limited. However, it is submitted by the learned Counsel for the complainant that this Circular is bad in law and is ultra vires the powers under which such Circulars can be issued. We feel that the present proceedings are not appropriate as the complainant is impugning the powers vested in the Government to issue such Circulars. Therefore, the learned Counsel for the complainant seeks leave to withdraw the complaint with liberty to take recourse to a remedy in an appropriate Forum in accordance with law. Leave and liberty is granted. Accordingly, the present complaint, i.e. RTPE 13 of 2001 is dismissed as withdrawn. The Notice of Enquiry issued in this case stands discharged with no order as to costs.”
3. The main complaint was filed on the basis of the averments that the respondent is a Public Sector Undertaking engaged in the business of manufacture and marketing of petroleum products. The applicant has been purchasing regularly its requirements of petroleum products including HSD oil from the respondent on the basis of orders placed by it with the respondent for supply Ex. Cochin and/ or Trivandrum in the Slate of Kerala. The sales of the applicant from the respondent have since very beginning been on ‘Prinicipal to Principal’ basis liable to the Central Sales Tax of 4% under the Central Sales Tax Act, 1956 subject to the applicant’s furnishing of ‘C’ Forms to the respondent. This practice has allegedly been followed till May, 1989. The main grievance is that the respondent vide its Circular dated 31st July, 1989 changed Supply Point of petroleum products from Cochin to Madurai w.e.f. 1.9.1989 and called upon the applicant to take supplies from the State of Tamil Nadu which attracted much higher local sales tax instead of the Central Sales Tax and thereby imposing unjustified higher costs on the applicant. A copy of the Circular dated 31.7.1989 is enclosed with the complaint as Annexure ‘I’. Thereafter the applicant also moved the High Court for a restraint order and while the proceedings were pending in High Court of Madras a complaint under Section 37 read with Section 10(a)(i) of the MRTP Act was filed praying for passing ‘Cease and Desist’ orders for the restrictive trade practice being indulged in by the respondent together with an application under Section 12A of the MRTP Act for grant of temporary injunction. The Notice of Enquiry was issued in the above said proceedings on 15.5.1997 and the complaint was treated as information.
4. The subsequent developments with regard to the supply are stated in paragraphs 11, 12 and 13 of the complaint which may be referred to as below :
“11. That the respondent orally informed the applicant sometime in June, 2000 that it would not supply the HSD oil on inter-State sale basis Ex. Cochin and/or Trivandrum and subsequently vide its letter dated 5.6.2000 refused to supply on inter-State sale basis HSD oil and Ms. SKO, FO, LDO, and Naphtha. A copy of the respondent’s letter dated 5.6.2000 is enclosed as Annexure-4.
12. That the applicant had to file application dated 8.6.2000 under Sections 12-A and 12-B of the Act, inter alia praying for re-starting and continuing supply of HSD oil and other petroleum products to the claimant on inter-State basis as has been the practice since 1990. A copy of each of the applications under Sections 12-A and 12-B are enclosed as Annexure-5.
13, That the applicant, to meet its urgent requirements of HSD oil, had to purchase under compulsion from the respondent HSD oil of quantity 228 KL (48 KL, 72KL, 36KL, 36KL and 36KL) on local sales basis and lodged protest on 14.6.2000. The local sales tax in Tamil Nadu on HSD oil being 18 percent is too high compared to the Central Sales Tax of 4 percent subject to furnishing ‘C’ Form. As a result of the respondent indulging in the Restrictive Trade Practice, the claimant had to incur unjustified costs and make excess payments of about Rs. 4,00,273/- (Rupees four lakh two hundred and seventy three only).”
5. The applicant is presently aggrieved by the Circular dated 31.10.2000 as will be evident from reading of paragraph 16 of the complaint which reads as below :
“16. That the respondent, within three weeks of supplying HSD oil on Ex-Mi Rates basis, vide its Circular letter No. C/ 409-Genl dated 31.10.2000 decided to supply HSD oil on “Delivery Assistance” basis, i.e. through IOC tank/trucks and directed the claimant to make payments towards Ex-Mi Rate (inclusive of all taxes, duties etc.) plus delivery assistance charges (at the rate of 86.03 paise/KLXRTD), The sales tax was not to be charged on the aforesaid delivery assistance charges. A copy of the respondent’s Circular dated 31.10.2000 is enclosed as Annexure-8.”
A copy of the Circular dated 31.10.2000 may also be referred to as under :
“Please refer our earlier letter of even reference dated 10.10.2000 on the subject, wherein it was indicated the inter-State HSD supplies will be effected on ex-Mi basis i.e., through your own contract tank/ trucks. Now, on industry basis, it has been decided that the subject supplies will be effected on “Delivery Assistance” basis i.e., through IOC tank/truks, Hence you are requested to make payment at our supply location as under :
“Ex-Mi Rate-Delivery
assistance charges
(inclusive of all taxes, duties etc.) ((c) 86.03 paise/KLXRTD)
By this arrangement, it may please be noted that sales tax will not be charged on delivery assistance charges.
Other terms and conditions remain same.”
6. The grievance of the applicant is that the above said Circular imposes unjustified costs and restriction on the applicant and, therefore, attracts provisions of Sections 2(o) and 33 of the MRTP Act, 1969. There is no legal requirement for the tanker operators to obtain any approval from the oil companies including the respondent to lift petroleum products on behalf of the consumers. Further it is stated that the respondent company also allows the applicant company to use tankers of private transporters for carrying Furnace Oil on Ex-Main Installation (Ex-Mi) basis. The applicant company negotiates the freight rates. However, for transport of the HSD oil, the respondent company insists upon the use of only those tankers with which it has entered into the contract. This discriminatory and arbitrary practice of the respondent company is against the interest of the applicant company. If the applicant company negotiates the freight rate, it works out to be about 67 paisa/KL/KM whereas with the lOC’s tanker the freight rate works out to be about paisa 86.03/KL/KM. This is evident from the respondent company’s Invoice Nos. 012351 dated 9.11.2000 and 12428 dated 15.11,2000 and Karthikey Transports Bill No. 536 dated 15.11.2000 respectively.
7. The present application for review has been filed against the order dated 30.7.2001 and it is well-settled that the power of review can be exercised only to rectify the error which is apparent on the face of the record. Though in the impugned order dated 30.7.2001, the reference to Circular dated 31.7.1989 is made, the same reasoning will apply to the subsequent Circular dated 31.10.2000 as well, The main contention of learned Counsel for the applicant is that the impugned Circular is bad in law as is ultra vires the powers under which such Circular can be issued. We clearly held earlier that the present proceedings are not appropriate as the applicant/complainant is impugning the powers vested in the Government to issue such Circulars. It is also not in dispute that some writ petitions were also filed in the High Court of Judicature of Madras against the action of the respondent and for a restraint order in respect of the same cause of action. This is evident from reading of paragraphs 5 and 6 of the complaint which may be reproduced as below ;
“5. That the applicant had to move the Hon’ble High Court of Madras for restraining the respondent from making supplies of petroleum products from the nearest location in Tamil Nadu on delivery basis because at the relevant time in 1989 the respondent was not under the jurisdiction of the MRTP Act, 1969 (Act).
6, That while the subject-matter of the proceedings were pending at the Hon’ble High Court of Madras, the MRTP Act, 1969, was amended and thereby the respondent and its trade practices came under the purview of the MRTP Act in March, 1995.”
8. In view of the above, the learned Counsel for the complainant sought leave to withdraw the complaint with liberty to make recourse to a remedy in an appropriate Forum in accordance with law. Leave and liberty was subsequently granted. This Forum is not appropriate to assail the action of the respondent in framing the Circular which is approved by the Government. We, therefore, find no ground to entertain the present review application which is dismissed, There will be no orders as to costs.