based structure based on commercial concerns. The mere fact that the NCDP has ‘imposed’ the task of meeting the entire domestic demand for coal under the FSAs on CIL, and that if need arises, CIL is expected to resort to the import of coal to fulfil this demand, in no way detracts CIL from operating independently in the relevant market, in as much as it is not the case of the opposite parties that the supply of coal under the NCDP (including imports) is to be made by the opposite parties at sub-market or non-competitive rates. In fact, imported coal to be supplied by the opposite parties under the FSAs is to be supplied at cost plus price ( i.e ., higher than the market price). In reality, the opposite parties have never exercised their option to supply imported coal as part of the ACQ under the FSA, which only goes to show that imported coal is not treated as a substitute to indigenous coal, even by the opposite parties themselves. In fact, the structure of the FSAs under the NCDP further strengthens the dominance of CIL and its subsidiaries in the market, virtually making domestic thermal power utilities dependent on the opposite parties for their operations. It has been further argued that only the linkages under the NCDP are determined by the SLC (LT) of the Government of India, while CIL has a free hand in determining the terms and conditions of the FSAs keeping in mind its commercial interests. The objects clause of the Memorandum of Association of CIL encapsulates the role of CIL and provides that it must act ‘ as an entrepreneur on behalf of the State in respect of the coal industry and plan and organize production of coal as also its beneficiation and the manufacture of other by-products of coal in accordance with the targets fixed in the Five Year Plans and the economic policy and objectives laid down by the Government from time to time ’. As such, it was sought to be suggested that CIL is driven by commercial interests in the supply of coal to the thermal power producing utilities under the FSAs, which finds reflection in the terms of the said FSAs drafted by CIL.
