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49. The other grievances of the Appellants are that the Commission has failed to define the relevant market, which is required to be determined in view of the decision of the Hon'ble Supreme Court.

50. Alternative arguments was also advanced on the question of penalty on the ground that only for the period November 2010, January and February, 2011, certain deficiencies were detected. Submissions on behalf of ACC Limited

51. Mr. Gopal Subramaniam, learned Senior Counsel appearing on behalf of the ACC Limited submitted that ACC Limited has rebutted each of the presumptive conclusions of the Commission arrived at in the impugned order, inter alia, as under:

a) Capacity utilization of the cement plants of ACC Limited (an average of 92.2% for 2007-2010) has been substantially higher than that of the industry average of 73%;
b) Dispatches were directly related to the demand in the marketplace based on orders placed by distributors;
c) ACC Limited actual data (in terms of production, prices, capacity utilization, dispatches etc.) for the period between May 2009 and March 2011 was at variance with the "big picture" trend sought to be drawn by the Commission relying on the Cement Manufacturers' Association data (which does not include ACC Ltd.

or Ambuja data);

d) The Commission's own Economics Division concluded that the cement companies were behaving independently and these concrete findings have not been addressed by the Commission at all; and

e) ACC Limited did not attend any meeting of the high powered committee (HPC) of the Cement Manufacturers Association (CMA) as alleged by the Commission. Without prejudice to this fact, ACC Limited price movements, when compared to that of its competitors, bore no collusive trend. In fact, even when prices increased in certain regions, they dropped in other regions. This trend was visible both before and after the HPC meetings of the CMA meetings dated 3rd January 2011, 24th February 2011, and 4th March 2011, the minutes of which do not disclose either the participation of ACC Limited or the discussion of pricing behaviour. In fact, the ACC Limited prices in various regions (for example, Delhi, West Bengal, Uttar Pradesh, Assam, Odisha, Madhya Pradesh etc.), after these alleged meetings were lower than the prices prevailing at various points in time in the previous year. In addition, the Commission's analysis is inherently flawed given that it has considered incorrect monthly prices.

b) The following table also further reiterates the fact that even post exclusion of ACC and ACL, the capacity utilization was only 75%.

Capacity utilisation based on available and installed capacity Total Installed capacity excluding ACC 234.30 MMT Ltd. and ACL as on 31.03.2011 Total Installed capacity including ACC 286.38 MMT Ltd. and ACL as on 31.03.2011 Actual available capacity excluding ACC 224.41 MMT Ltd. and ACL as on 31.03.2011 Capacity utilisation excluding ACC Ltd. 168.29 MMT and ACL on 31.03.2011 % Capacity utilisation excluding ACC Ltd. 75% and ACL on actual available capacity of 224.41 MMT as on 31.03.2011 % Capacity utilisation including ACC Ltd. 73% and ACL on reported installed capacity of 286.38 MMT as on 31.03.2011