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33.15. In the event that the Commission considers it necessary to impose any penalty and/or remedies, it should consider (a) relevant turnover of OP in India, i.e. OP's turnover from sales of BMPs for desktop PCs in India for the three FYs preceding the year in which the investigation report is received by the Commission; (b) the impact on the market and consumers; and (c) significant mitigating factors.
33.16. It is submitted that the following mitigating factors be considered by the Commission: a) OP's conduct has not caused or is likely to cause AAEC in any relevant market in India; (b) Intel has already discontinued the India Specific Warranty Policy w.e.f. 01.04.2024; (c) OP has consistently maintained compliance with the Act; (d) the present matter involves novel facts and circumstances and unique theories of harm where competition harm has been alleged based solely on the method of providing warranty services, as opposed to any condition that is directly related to purchase of the product in question; (e) the practices alleged to be in contravention of the Act are industry/ market practices; (f) OP's business condition has seen ` Public Version significant turbulence in recent times; and (g) OP operates in a technological market susceptible to disruptions.
85. The DG noted that prices (exclusive of taxes) of the Informant are slightly lower than the prices of authorised distributors barring few exceptions. In this regard, during the oral hearing, counsel for OP contended that this is an incorrect comparison of purchase price of Informant with sale price of OP's authorised distributors. Upon adding the import duty and other miscellaneous costs etc. and margin to this purchase price of Informant, the resultant sale price will be more than the sale prices offered by the authorised distributers of OP.
102. At the outset the Commission notes that the volume of boxed microprocessors sold by OP and one of its authorised distributer Ingram is available for calendar years, whereas, those of Rashi Peripherals and WPC is available for FYs, due to which the percentage of units sold by authorised distributers in the year 2020-21 and 2021-22 appears to be more than the sale volume reported by OP. However, this analysis does demonstrate an overwhelming increase in the units of BMPs sold by the authorised distributers after implementation of the India Specific Warranty Policy. This trend also corroborates one of the underlying justifications put forth by OP that change in warranty policy was implemented in order to protect the authorised distribution channel, which Intel appears to have succeeded by taking into account the above figures which demonstrates that majority sales of BMPs in India was ` Public Version through the authorised distribution channel of OP during 2016-21 despite an overall declining trend in the sale of BMPs.
117. With regard to quantum of penalty, the Commission takes into account the contention of OP of considering turnover of boxed microprocessors and also finds the same in line with the Turnover Regulations, 2024. As per the certificate submitted by OP, the relevant turnover details are as under:
Table 9: Turnover of OP from sale of BMPs conversion Amount (in INR Years Amount (in USD) rates crore) CY 2020 ............. 74.13 ............