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(a) Sampling procedure for existing PSUs and other power producers are different, without any reason for such discrimination. The sampling procedure lacks obligation on the seller to incorporate fair and transparent procedure to match the Gross Calorific Value (GCV) pricing mechanism. The sampling and testing procedure in clause 5.7 (4.7 for old power producers) FSA were found to be unfair and discriminatory.

174. Now the other pertinent aspect relating to the sampling procedure itself may be examined.

175. The investigation revealed that the procedure for sampling and analysis of quality of coal is of great significance to power producers. CIL, being the dominant supplier of coal in the market, is required to take into consideration the quality related issue fairly and in a non-discriminatory manner.

184. The Commission has carefully examined the issue after perusing the material placed on record. It appears that prior to the current FSAs, the sampling was done at both ends i.e., loading and unloading points by an independent party. CIL while drafting the model FSA made changes in the sampling procedure without consulting the power producers.

185. CIL, however, argued that the allegations regarding the joint sampling method are unfair and unfounded. It was submitted that due to the problems with the previous method of third party sampling raised by the power companies, that the shift to joint sampling took place. Moreover, joint sampling is a fair system as both parties are involved in the sampling process, and allegations of a bias in the third party agency are avoided. Lastly, it was argued that joint sampling at the loading end was the method of sampling agreed upon with the power companies, NTPC and CEA in 2009. Therefore, it was contended that the issue of unfairness or unilaterally changing the same does not even arise.

187. At this stage, it would be instructing to notice the sampling procedure adopted by the only other player in the relevant market i.e., SCCL. In this regard, it was noted by the DG that while the FSA of SCCL provides for sampling at the loading end only, there is provision for analysis by both the parties at their respective labs and for this purpose three sets of sample (one each for seller, buyer and referee) are prepared. Thus, the buyers have been given opportunity for testing of sample to their satisfaction. Thus, compared with another player in the relevant market the procedure of sample collection and analysis adopted by the opposite parties appears to be tilted in favour of seller in CIL's FSA