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NCLAT upholds ₹200 crore penalty imposed by CCI on Amazon for discrepancies in Future deal

Arti kumari 

The National Company Law Tribunal (NCLAT) has upheld an order of the Competition Commission of India (CCI) which imposed a ₹200 crore penalty on Amazon for failing to reveal crucial details of its acquisition of a 49 per cent stake in Future Coupons Private Limited (FCPL). The Bench of Justice M Venugopal and Dr Ashok Kumar Mishra also dismissed appeals filed by the All India Consumer Product Distributors Federation and the Confederation of All India Traders, and gave Amazon 45 days to deposit the penalty and comply with the CCI order. The ₹200 crore penalty was imposed for Amazon's failure to identify and notify the Future Retail Limited Shareholders Agreement (FRL SHA) as a part of the deal, which was an obligation under Section 6(2) of the Competition Act, 2002. The competition watchdog had also kept in abeyance the deal between Amazon and Future until the former gives notice to the CCI of the proposed deal as per Form II specified under the Act, within a period of 60 days. In its judgment, speaking of the failure of Amazon to disclose certain information regarding the deal, the NCLAT held, "In the instant case, this `Tribunal’ pertinently points out that quite opposite to the internal communications/emails of the Appellant/Amazon had not shown a possibility of the `Combination’ being pursued for having a foot-in-door in the Indian retail sector, acquire strategic rights over `FRL’, etc. To put it precisely, the Appellant/Amazon had projected in `FRL’, `FCPL’ only a vehicle, for which, no intention was assigned." Noting that Amazon had made only limited disclosures and had not spelt out the real combination of its acquisition of strategic rights and interests over Future Retail Limited (FRL), the Bench came to the conclusion that, "...the Appellant/Amazon had not fulfilled its obligation as per ingredients of Section 6 (2) of the Competition Act, 2002, attracting imposition of penalty under Section 43A of the Act, extending to 1% of the total turnover or the Assets whichever is higher of such a `Combination’." As regards the penalty of ₹2 crore imposed against Amazon by the CCI under Section 45 of the Competition Act, which prescribes a penalty amount of ₹1 crore, it held, "However, the imposition of maximum penalty of Rs.1 Crore each, as per the `impugned order’ dated 17.12.2021, passed by the `1st Respondent/CCI’, as per Section 44 and 45 of the Competition Act, 2002, is slightly on the higher side/excessive one, as opined by this `Tribunal’..." It thus imposed a penalty of ₹50 lakh on the e-commerce giant, which is also required to be paid in 45 days. The proceedings against Amazon were initiated based on an application dated March 25, 2021 (Application) of FCPL. Amazon had notified CCI about the proposed transaction to acquire 49 per cent stake in FCPL. A notification regarding the same was given by Amazon on September 23, 2019, pursuant to Section 6(2) of the Act, in Form I of Schedule II to the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2011 (Combination Regulations).

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