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(g) The Gas Sales Agreement (GSA) entered between the Appellant and its gas customers is not a contract for both transportation and sale of natural gas. There is no obligation imposed on the entities to levy transportation changes as determined by the Board on customers.

(h) The Board has directed the Appellant to stop the restrictive trade practice (RTP) without giving any findings/reasonings, the Board has failed to appreciate that RTP as defined in Clause 2 (zi) of the Act means a trade practice which has, or may have, the effect of preventing, distorting or restricting competition in any manner and in particular,-

(ii) Whether RTP is applicable in the case of natural gas which is admittedly not a notified product.

(iii) If, say, RTP is allowed, whether the civil penalty of Rs. 1.00 Lakh that has been imposed on the Appellant has been as per the Scheme of RTP.

46. The Respondent No.2 has alleged that the Appellant is trying to push the Respondent No.2 to a disadvantageous position by asking it to sign the contract with the Appellant for booking the common carrier capacity for less than 1 year period with a condition of 100% ship-or-pay. This is because the Appellant is transporting its gas through the same pipeline and finally selling the gas to its customers with a condition of take-or-pay where the offtake % age is not kept at 100% but at 80%. It means, the APPEAL NO. 290 OF 2016 Appellant could effort to sell its gas to its customers at a cheaper price than the Respondent No.2 who has to go through the condition of 100% ship-or-pay with Appellant and then compete the same market to sell its gas. The Appellant does not have to bear the condition of 100% ship-or- pay for transporting its gas. The Appellant has refuted it very strongly arguing that the Appellant has the right to transport its own gas through the pipeline as a first right as per Section 21 of the PNGRB Act, 2006. Moreover, the Appellant has taken a risk by investing a huge amount of money in constructing and laying the pipeline which obviously would need to be recovered during the economic life of the pipeline and accordingly, the Act has provided for it in Section 21.

49. The Appellant also contends that the Board's order on RTP is not in conformity with the definition of RTP which is given in Section 2 (zi) and also has cited the Supreme Court's order in Rajasthan Housing Board Vs. Parvati Devi (Smt.) (2000) 6 SCC 104 which in turn refers to the judgment in Mahindra and Mahindra Ltd. Vs. Union of India (1979) 2 SCC 529. The Appellant has also alleged that the Board in its impugned order dated 30.08.2016 merely reiterated its earlier order dated 26.12.2013 demonstrating a complete non-application of mind by the Board. Once the Supreme Court remanded the matter after setting aside the matter, the Board ought to have gone into details and given reasons to arrive at its finding on RTP.

51. The second issue linked to the issue of RTP is the civil penalty imposed by the Appellant on Respondent No.2. The Appellant contends that the RTP resorted to by any entity/person needs to be established/quantified in terms of the gain that the entity/person has enjoyed by resorting to the RTP. This aspect, if applicable, is also not addressed by the Board in its impugned order dated 30.08.2016.

52. Now coming to the issue of application of RTP in respect to a non-