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Lack of evidence and suppression of material facts :

20. Any claim of predatory pricing requires convincing evidence particularly that the practice has the intent to drive competitors out of business. The complainant has failed to prove any mala fide intent on the part of the ANSAC.
21. Many material facts have been suppressed which would demonstrate that the complainant has no case of predatory pricing at all.

Defence on merits :

22. The complainant's allegations are highly suspect and the law requires a convincing demonstration to support an injunction forbidding competition. The ANSAC "has not eliminated any competition in India".

3. PREDATORY PRICING :

Poser :
Has the ANSAC indulged in the alleged trade practice of predatory pricing ?
ANSAC's stand :
The complainant, the AMAI has not established the charge of predation. It has failed even to allege, much less prove, any mala fide intent on the part of ANSAC. There is no evidence that ANSAC will raise or-is likely to raise its prices at a later date in order to recoup any alleged losses suffered by it. An essential ingredient of cartelisation is a conspiracy to indulge in predatory pricing.
AMAl's siand :
At the time of oral arguments, Shri R. K. Jain, senior counsel for the complainant, observed that the injunction order of the Commission is limited to the trade practice of cartelisation. He added that the complainant would not press for the extension of the said order to cover predatory pricing. However, he emphasised the complainant's contention that the average export price of soda ash between June and December, 1995, was about 125 US dollars per metric ton and that between January and June, 1996, was about 131 US dollars per metric ton, whereas for India, ANSAC exported soda ash at a price of 89.50 US dollars per metric ton, free on board. He styled this as predatory pricing with the intent to wipe out the local producers of soda ash in India.
2. Cartel: Prima facie the ANSAC is a cartel indulging in the alleged trade practice of cartelisation in so far as the soda ash exports are concerned.
3. Predatory pricing : The affidavit dated October 16, 1996, of Philip X. Chapman, Director of Sales of the ANSAC, gives an inference of predatory pricing alleged by the AMAI.
4. Orders of the Commission of European Communities : The orders of the Commission of the European Communities have a persuasive effect in the instant case.
5. Gateways : As the allegations in the complaint application cover not only restrictive trade practices under Section 33(1) of the Act but also restrictive trade practices under Section 2(o), unfair trade practices under Section 36A and monopolistic trade practices under Section 2(i) of the Act, gateways may be pleaded at the appropriate stage of the enquiry.