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4. Gist of submissions of 0P:

4.1 It was submitted that the Competition Act is prospective in nature and Sections 3 & 4 came into force w.e.f. 20.05.2009. The MOU dated 1.2.2003 being a prior agreement is beyond the purview of the Act.
4.2 It was further argued that for an agreement were to be held in contravention of Section 3(1), it has to cause or likely to cause an appreciable adverse effect on competition in India (AAEC) and for these, it is important to determine whether the agreement is amongst persons at different stages or levels of production chain in different markets. It was argued that in the instant case, SAIL is the supplier and IR is the ultimate consumer and, therefore, they can in a production »\ .»-'N';*;=a '/ ct» k v 333* 6 ..

413 It was argued that JSPL has itself admitted that IR is dominant in the relevant product market in which it is a consumer. Therefore, the conclusion that IR does not possess any countervailing buying power is baseless. This is evident from the fact that the Chairman, Railway Board has the final say in pricing of rails purchased from SAIL. It was further contended that although the MOU does not restrict IR from taking suitable recourse in case SAIL is not able to meet its requirement, IR still did not procure from JSPL, which clearly reflects the consumer preference of IR. It was also pointed out that SAIL cannot sell prime quality rails to other users without clearance from IR. It was submitted that all these facts show substantial countervailing buying power of the IR in the relevant market.

7.2 Upon consideration of all the relevant facts and circumstances of the case, the Commission observes that the following points emerge for determination in this case:

Point no. 1: What is the status of the Opposite Party and the "necessary party" viz. SAIL and IR, in this case, in terms of section 2(h) of the Act?
Point no. 2: Whether there exists any agreement between the OP (SAIL) and "necessary party" (IR) that contravenes provisions of section 3(4) read with section 3(1) of the Act?

9.16 Coming to the upstream market where SAlL is operating, it would be possible for the MOU to cause AAEC. It should be kept in mind that as such, section 3 does not require determination of a "relevant market" as defined in section 2(r). The word "market/s" used in section 3(4) and 19(3) do not have the same connotation and focus as the term defined as "relevant market". The "market/s" of section 3(4) and 19(3) are intended to be broader because what is required is an assessment of AAEC and not of impact of dominance. This is so because section 3(3) covers enterprises engaged not only in identical but also in similar trades. Similarly, in context of section 3(4), the upstream or downstream enterprise could be a multi- product enterprise operating in more than a single "relevant market". Thus the "market/s" of section 3 would be broader than the "rele 'M , H 9.17 in the instant case, SAIL is an integrated an enterprise, includes more than RDSO competing with SAIL, particularly in the market of structurals. When AAEC has to be .<'3.?SAIL....i.s-.Qperat.i.ng,..this in.he.ren_t. different between "market" and "relevant market" must be kept in mind.