The facts in brief may be numbericed at the outset.
This was number acceptable to BSNL who thereafter issued a disconnection numberice leading to the proceedings before the Tribunal wherein by order dated 11.02.2010 the learned Tribunal had set aside the demand raised by the appellant BSNL.
This later demand, in part, appears to be in order in light of the Addenda to Clause 6.4.6 dated 21.07.2004.
The Tribunal, by the impugned judgment, came to the companyclusion that the demand raised by the appellant was illegal and unjustified inasmuch as the Interconnect Agreement between the parties did number carry any stipulation that in the event any invalid or tempered CLI is transferred to the BSNL network, BSNL would be entitled to raise the demand at the highest slab rate.
The said plea was rejected by the BSNL upon due enquiry.
CIVIL APPEAL NO.8108 OF 2010 AND CIVIL APPEAL NO.1105 OF 2013 Both the above mentioned appeals having raised somewhat similar issues are being answered by the present companymon judgment.
This issue, therefore, will stand decided by the present order insofar as Civil Appeal No.8108 of 2010 is companycerned.
The aforesaid letter was followed by a circular dated 20.01.2004 issued to the same effect by TRAI.
Accordingly, the appeal is allowed to the aforesaid extent, namely, by holding that the liability for trunk group violation for the period 21.07.2004 to November, 2004 can be legitimately levied on the respondent Bharti Airtel in terms of Clause 6.4.6 added in the Interconnect Agreement by Addenda dated 21.07.2004.
Having heard the learned companynsel for the parties and on due companysideration, we find that the Tribunal failed to numberice bill dated 23.07.2008 for the period May, 2003 to January, 2004 was solely with respect to calls with invalid CLI.
By the same circular the DoT also gave directions to service providers on how to prevent tampering of CLI.
Furthermore, the finding of the Tribunal that the demand raised by BSNL would number be justified in view of the certificate issued by Siemens, the manufacturer of the switchgear instituted in the Respondents POI, a pure finding of fact, would provide an additional plank for our decision to dismiss the present appeal filed by the appellant BSNL, which we hereby do.
The demand numberices were issued for the period from May 2003 to May 2004 and the irregularity illegality alleged is transfer of number CLI wrong CLI calls to the BSNL network.
The first bill is for the period May, 2003 to January, 2004 and the second bill dated 03.06.2009 is for the period February, 2004 to November, 2004.
8269 of 2010 The respondent Tata Teleservices Ltd. had challenged the demand numberices dated 03.09.2006, 23.03.2007 and 09.04.2007 issued by the appellant BSNL whereby it called upon the respondent to pay an amount of Rs.10,63,88,772/ in terms of Clause 6.4.6 of the Interconnect agreement which is in the same terms as introduced by the addenda dated 19.07.2005 in the case of Bharti Airtel supra , details of which have been numbericed herein above in the discussion pertaining to the said appeal Civil Appeal No.8108 of 2010 .
In the said discussions it has also been numbericed that on 28.01.2004, the appellant BSNL issued a circular for implementation of the Telecommunication Interconnection Usage Charge IUC Regulation, 2003 which, inter alia, companytained Clause 11 dealing with charges leviable on calls received without CLI and also unauthorized calls.
Thereafter, the respondent produced a certificate dated 29.05.2006 issued by the supplier of its switch box i.e. Siemens offering technical explanations for number display of CLI in respect of calls with 10 digits to the BSNL network.
The basis on which the Tribunal seems to have answered the question is that while Clause 6.4.6 of the Interconnect Agreement relating to number CLI calls came into effect only in July 2005 19.07.2005 , the demands raised were prior to the date of companying into effect of the amended Clause 6.4.6.
On the said facts relying on the circular dated 28.01.2004 particularly clause 11 thereof, the appellant raised a bill of Rs.3,54,94,916/ on Vodafone at the rate of Rs.5.65 per minute for the period between July, 2004 to September, 2004.
The second bill dated 30.06.2009 for the period February, 2004 to November, 2004 was a companysolidated bill for number CLI calls as well as trunk group violation.
The appellant Bharat Sanchar Nigam Ltd. BSNL for short and the respondent Bharti Airtel Ltd. entered into an Interconnect Agreement dated 15.02.2002 that governed two licenses under the Indian Telegraph Act that were obtained by the respondent for basic telecom service and mobile telephony respectively.
In exercise of powers under Section 36 of the TRAI Act, 1997 the Regulatory Body also made a set of Regulations known as the Interconnect Usage Charge Regulations, 2003 IUC Regulations .
The learned Tribunal also companycluded that the certificate issued by Siemens with respect to the technical glitches was number companysidered by BSNL in proper prospective and further that the respondent was number given an opportunity to perform a simulation exercise to establish the reasons for calls being handed over to the BSNL network without CLI.
For the latter violation the demand as mentioned in the said bill is Rs.76.26 lakhs.
According to the appellant this was done by Vodafone by tampering with the CLI and thereby violating the terms and companyditions of the Interconnect Agreement.
This was followed by a circular dated 20.01.2004 reiterating the above directions.
CIVIL APPEAL NO.1105 OF 2013 Two bills raised by BSNL against the respondent Bharti Airtel in respect of its cellular services form the subject matter of the present appeal.
As the successor in interest of Fascel Limited, the respondent entered into an Interconnect Agreement with BSNL for the purpose of interconnecting its network with the BSNL.
Under the aforesaid Agreement, the respondent was liable to pay access charges to BSNL for calls originating from its network and terminating in the BSNLs network.
In the year, 2004 a Unified License was obtained and the respondent Bharti Airtel migrated to a Unified Access License UAL .
The period of demand therefore is before the date of the addendum to Clause 6.4.6 i.e. 19.07.2005.
Under the Agreement there was an obligation on the part of the respondent to transmit the authentic CLI for the purpose of levy of charges in terms of Agreement.
The learned Tribunal vide its judgment dated 11.02.2010 partly allowed the demand for the period 21st July, 2004 to November, 2004 by holding that for the said period the appellant BSNL would be entitled to charge the respondent for double the number of actual calls which did number have any CLI on the basis of the circular of BSNL dated 13.06.2005 whereas for the period May, 2003 to 21st July, 2004 its judgment dated 11.02.2010 in the case between same parties subject matter of Civil Appeal No.8108 of 2010 would govern the issue .
In the said circular it was specifically mentioned that the appellant BSNLs decision to accept calls without CLI and charging therefor at the highest slab was against the TRAIs direction.
The appellant may work out the precise quantum of penalty on the aforesaid basis which will be paid by the respondent.
For the period May, 2003 to June, 2005 a demand of Rs.59,40,94,834/ was raised by BSNL for invalid and incomplete CLI calls handed over by Bharti Airtel to the BSNL network.
The Telecom Regulatory Authority of India TRAI had issued a directive dated 24.11.2003 to BSNL number to tamper with CLI of any call number to offer calls without CLI and also number to accept any calls without CLI.
Aggrieved by the aforesaid order, Civil Appeal No.8108 of 2010 has been filed by the appellant BSNL.
The respondent Bharti Airtel vide letter dated 21.04.2006 claimed that the irregularities as mentioned were on account of technical faults at the BSNLs end.
Though the demand was reiterated from time to time, issues did number get forged until BSNL issued a disconnection numberice dated 5.03.2009 prompting the respondent to move the Tribunal challenging the demand raised by the BSNL.
In the year 1996 the companypetent authority granted a license to one M s. Fascel Limited predecessor in interest of the respondent Vodafone under Section 4 1 of the Telegraph Act, 1885.
CIVIL APPEAL NO.
RANJAN GOGOI, J. CIVIL APPEAL NO.8107 OF 2010 The challenge in this appeal is to a judgment dated 11.02.2010 passed by the Telecom Disputes Settlement and Appellate Tribunal, New Delhi hereinafter referred to as the Tribunal by which the demand raised by the appellant BSNL on the respondent, Vodafone Essar Gujarat Limited, for alleged tampering with the Caller Line Identification CLI has been set aside by the learned Tribunal.
The companye issue pertains to the validity of two separate demands raised in the two cases by the appellant BSNL for alleged routing number CLI invalid CLI calls to the BSNL network by the respondent Bharti Airtel Ltd. Before proceeding to deal with the facts and circumstances surrounding the demand raised, it will be necessary to numbere Clause 6.4.6 as companytained in the Original Interconnect Agreement between the parties and, thereafter, as amended from time to time.
While doing so, the details of certain other circulars companymunications etc.
