ITC Limited Vs Competition Commission Of India

Dr. Alok Srivastava, Member (Technical)]

1. The present appeal has been preferred under section 53B of the Competition Act, 2002 (in short “Act”) against the order dated 11.12.2017 (in short “Impugned Order”) in Combination Registration No. C-2017/02/485 passed by the Competition Commission of India (in short “CCI”) whereby the CCI has imposed a penalty of Rs. Five Lakhs only on the Appellant under section 43-A of the Act, after finding the Appellant to be in violation of provisions of section 6(2) of the Act.

2. Briefly, the Appellant ITC Limited (in short “ITC”) is a public limited company within the meaning of the Companies Act, 2013 having its registered office at Kolkata and the Respondent is the Competition Commission of India (in short “CCI”), a statutory body formed under section 7 of the Act. The Appellant entered into a brand purchase agreement with Johnson & Johnson Pvt. Limited (“Seller No. 1”) dated 12.2.2015 for the purchase of trade mark “Savlon” along with certain inventories, technical knowhow and other promotional material (“Savlon Agreement”). This purchase of the trade mark etc. is referred to as ‘Transaction-I’. The Appellant on the same date 12.2.2015 entered into another brand purchase agreement with Johnson & Johnson Pte Limited (“Seller No. II”) for the purchase of the trade mark ‘Shower to Shower’ along with attendant knowhow and their promotional material (“Shower to Shower Agreement”). This purchase is referred to as ‘Transaction-II’.

3. The Appellant further submits that on 4.3.2011, the Ministry of Corporate Affairs, Government of India issued a notification under section 54 of the Act and vide this notification No. S.O. 482(E), any transaction wherein an enterprise having assets of not more than Rs.250 crores or turnover of not more than Rs.750 crores whose control, shares, voting rights or assets would be acquired, was exempted from the provisions of section 5 of the Act for a period of five years. He has further submitted that exemption limits in this ‘De-Minimis’ Notification was revised vide notification No. S.O.674(E) dated 4.3.2016, whereby the quantum of assets of the transferor company was raised to Rs.350 crores in India and turnover to Rs.1000 in India which would be exempted from the application of section 5 of the Act for a period of 5 years. Subsequently by another notification S.O.988(E) dated 27.3.2017, a clarification was issued by Ministry of Corporate Affairs stating that where a portion of an enterprise or division or business is being acquired and taken control thereof, merged or amalgamated with another enterprise, the value of assets of the such portion or division or business and or attributable to it, shall be the relevant assets and turnover to be taken into account for the purposes of calculating the threshold under section 5 of the Act. The Appellant has stated that this notification was clarificatory in nature having retrospective effect, and applied to only the segment/portion/business of an enterprise that was being combined with another enterprise, and so the relevant assets and turnover attributable to the target segment, portion, business were only the amount of assets and turnover relating to such portion of the business.

4. The Appellant has stated that the CCI vide notice dated 11.2.2016, sought information pertaining to the value of assets and turnover of the parties in Transaction-I and Transaction-II and in response dated 8.3.2016, the Appellant submitted that the Transactions I and II, either taken individually or together, were not notifiable under sections 5 and 6 of the Act as the trademarks acquired did not amount to acquisition of enterprise and this did not amount to a combination as per section 5 of the Act. The CCI further sent a notice dated 7.11.2016 to the Appellant under section 20(1) of the Act read with Regulation 8 of the CCI (Procedure in regard to the transaction of business relating to combinations) Regulations, 2016.

5. After  the  notice  dated  7.11.2016  sent  by  CCI  to  the Appellant, and upon receiving directions from the CCI, the Appellant filed its Form – I regarding the purchase of ‘Savlon’ and ‘Shower to Shower’ trademarks on 16.2.2017, which was done without prejudice to its belief and understanding that both the transactions relating to the purchase of two trademarks did not amount to a combination under Section 5 of the Act and was therefore not required to be notified under Section 6(2) of the Act. The Appellant has further stated that the CCI vide its order dated 22.3.2017 unconditionally approved the transactions under Section 31(1) of the Act finding that there was no ‘appreciable adverse effect on competition’ in the defined relevant markets, but thereafter issued a show cause notice dated 29.3.2017 to the Appellant under Section 43A of the Act directing the Appellant to file a response to the show cause notice for not filing the transactions under Section 6(2) for approval of the CCI. The Appellant has stated that it filed its response to the show cause notice and presented arguments before the CCI along with written submissions, and vide the impugned order dated 11.12.2017, its arguments were rejected by the CCI and the fine of Rs. 5 Lakhs only as penalty was imposed on the Appellant under Section 43A of the Act for alleged failure to give notice under Sub-section 2 of Section 6 of the Act and aggrieved by the Impugned order the Appellant has filed this appeal.

6. We  heard  the  arguments  advanced  by  the  Learned Counsels for the both parties and perused the record. The Learned Counsel for Appellant has submitted that once the CCI had found that there was no ‘appreciable adverse effect on competition’ in the relevant markets as a result of Transactions I and II, the jurisdiction did not lie with the CCI to open proceedings under Section 43A. He has referred to the provisions in Sections 6(1) and 6(2) and argued that Section 6(2) will become operative only after an ‘appreciable adverse effect on competition’ in the relevant market in India is found under the Section 6(1) of the Act against an enterprise. He has thus argued that Section 6(2) is subject to the provisions of Section 6(1). He has further argued that the Form-I filed before the CCI under section 6(2) by the Appellant on 16.2.2017 related to the relevant markets of the (i) sale of antiseptic liquid in India, (ii) sale of antibacterial hand wash/soap in India, and (iii) sale of prickly heat powder in India. He has further argued that in relation to Transaction-I and Transaction-II, the Appellant was not present in any of the relevant markets in the financial year 2013–14 and therefore, the CCI unconditionally approved Transaction-I and Transaction-II vide order passed dated 22.3.2017 after holding that the said transactions were not anti-competitive in nature and did not cause 'appreciable adverse effect on competition’. He has thus argued that after holding that the said transactions were not anti-competitive, the CCI could not have exercised powers under Section 43A for alleged violation of Section 6(2) as Section 6(1) itself was not attracted in connection with both the transactions.

7. The Learned Counsel for the Appellant has further submitted that the two transactions, Transaction-I and Transaction-II, did not contemplate or result in the acquisition of an enterprise as contemplated in Section 5 of the Act and therefore, the CCI has failed to appreciate the submissions of the Appellant that no ‘brick and mortar’ assets or employees of the transferor company were acquired by ITC (Appellant). He has further submitted that a combined reading of Section 2(h) and Section 5 of the Act suggests that only the acquisition of an enterprise as defined under the Act, would amount to a combination and a harmonious reading of Section 2(h), 2(l) and Section 5 makes it clear that purchase of trademarks alone would not tantamount to acquisition of an enterprise as envisaged under Section 5 of the Act. The Learned Counsel for Appellant has also contended that the inference of the CCI that the absence of non-complete clause regarding the said transactions to conduct the same business makes the Appellant liable for notifying the said transaction is not correct, because the transactions permitted the sellers to carry on the business associated with the acquired trademarks and no assets are amounting to a business or a unit or a division of the transferor were acquired. He has, therefore, contended that both the Transactions-I and -II did not contemplate acquisition of an enterprise as is required under Section 5 of the Act and hence there was no requirement for these transactions to be notified under the provisions of Section 6(2) of the Act.

8. The Learned Counsel for Appellant has referred to the notification dated 2.3.2011 issued by the Ministry of Corporate Affairs, Government of India under Section 54(a) to point out that the said notification requires that only relevant figures attributable to the assets being acquired ought to be taken into account for the purposes of calculation of threshold of total assets and turnover. He has pointed out that notification dated 4.3.2016 issued by the Ministry of Corporate Affairs under Section 54 of the Act only revised the threshold limit of the value of assets and turnover to Rs. 350 crore and Rs.1000 crore respectively and again by notification dated 27.3.2017, the Ministry of Corporate Affairs issued clarification that for the exempted enterprises that are party to any acquisition covered in Section 5(a) of the Act, the value of the assets and turnover would relate only to the portion or division of an enterprise that is being acquired or merged, and the value of the portion or division will be calculated based on its book value, including brand value, goodwill, copyright, patent, registered trademarks, geographical indications, and other commercial rights and the turnover will be determined based on the last available audit accounts of the company. He has also pointed out that the press release dated 30.3.2017 issued after this notification was clarificatory in nature and thus it was applicable with retrospective effect and it would be applicable with retrospective effect in the facts of the present case.

9. Finally, the Learned Counsel for Appellant has claimed that in the light of the order of this Tribunal in the matter of Eli Lilly and company versus Competition Commission of India dated 12.3.2020, it is clear that the thresholds that ought to be considered are the relevant figures attributable to the trademarks purchased by ITC and the same would be relevant asset value and turnover to be considered for the purposes of the threshold insofar as the application of De Minimis notification is concerned. He has claimed that on the basis of the judgment in Eli Lilly case (supra), there should be ‘zero’ penalty imposed in the present case as the value of the assets and the turnover individually and combined of the transactions relating to acquisition of trademarks concerned in the present case is below the threshold limit.

10. Regarding the validity of the De Minimis notification, the Learned Counsel for Appellant has further submitted that the provision under Section 54 of the Act allows the Central Government to respond to various exigencies and difficulties that might arise in the implementation of the Competition Act and regarding giving exemption to any class of enterprise if such exemption is necessary in public interest or in the interest of the security of the state. In this connection, he has cited the judgment of Hon’ble Supreme Court in the matter of Kailash Nath vs. State of U.P & Ors. (AIR 1957 SC 790), wherein it is held that notification which is made using powers conferred by the statute has statutory force and validity. He has also referred to the judgment of Hon’ble Supreme Court in the matter of Collector of Central Excise, Bombay-1 and Anr. vs. M/s. Parle Exports Pvt. Ltd. (1991 1 SCC 345), wherein Hon’ble Supreme Court has held that while interpreting an exemption clause, liberal interpretation should be given and in favour of the subject of exemption.

11. Regarding the restrospective application of the De Minimis Exemption, the Learned Counsel for the Appellant has cited the judgment of Hon’ble Supreme Court in the matter of Government of India & Ors. vs. Indian Tobacco Association (2005 7 SCC 396) and has submitted that following the judgment in this case, the application of De Minimis Exemption Notification dated 27.3.2017, is clarificatory and it will have retrospective effect. Regarding the restrospective application of a notification which is clarificatory in nature, he has also cited the judgment of Hon’ble Supreme Court in the matter of Rajagopal Reddy Vs. Padmini Chandershekaran (1995 2 SCC 630), where it is clearly held that a clarificatory amendment will have retrospective effect.

12. The Learned Counsel for Appellant has also referred to the judgment of Hon’ble Supreme Court in the matter of Excel Crop Care Limited v. Competition Commission of India & Anr., [(2017) 8 SCC 47], wherein paragraphs 84 to 94, the relevant turnover has been defined as the appropriate yardstick for imposition of penalty in view of the doctrine “purposive interpretation”. He has further referred to Paragraph 113 of this judgment to point out that the relevant turnover that has been considered therein is calculated in the light of only such assets, which are the subject matter of the anti-competitive agreement.

13. The Learned Counsel for CCI has argued regarding the contention of the Appellant/Acquirer that the transactions fall within the scope and ambit of item 3 of Schedule I of Combination Regulations, by submitting that the purchase of intellectual property of a competitor by a business enterprise cannot be construed as being a transaction in the ordinary course of its business, and moreover, the acquirer ITC is engaged in the business of selling personal care products and is not in the business of selling/purchasing intellectual property rights related to these products which means that the said Transactions I and II were not done in the ordinary course of business. On this basis, he has claimed that the benefit of item 3 of Schedule I of Combination Regulations will not be available to the acquirer ITC in the present matter.

On the issue of the notification dated 27.3.2017 being clarificatory in nature and therefore having retrospective effect, the Learned Counsel for CCI has argued that the De Minimis Exemption Notification issued on 4.3.2011 only had a life span of five years and, therefore, the subsequent clarificatory notification dated 27.3.2017 cannot be held to apply to a notification that whose life span has elapsed when the clarificatory notification had been issued.

14. The Learned Counsel for Appellant has referred to the judgment of Hon’ble Supreme Court in the matter of Union of India and Ors vs. Indusind Bank Ltd. (2016 9 SCC 720) to point out that when substantive changes in law are made, then they are remedial in nature and cannot have retrospective effect. He has further pointed to the judgment of Hon’ble Supreme court in the matter of Shyamsunder and Anr. vs. Ram Kumar & Anr. [2001 8 SCC 24] to claim that if an enactment is expressed in a certain language, which is capable of interpretation as either having prospective or retrospective effect, then the interpretation should be construed as prospective only. To buttress his arguments, he has contended that in the new De Minimis Exemption Notification dated 27.3.2017, there is no mention that the said notification is retrospective in nature, and therefore, it would not be correct to construe its retrospective operation. Further, he has argued that the Press Release regarding the revised De Minimis notification does not have statutory force as that of the notification and therefore, cannot alter the statutory position prescribed by law.

15. Regarding the issue of relevant assets and relevant turnover, the Learned Counsel for CCI has pointed out that the Explanation (c) of section 5 of the Act provides that the valuation of assets shall be determined by taking the book value of assets as shown in the audited books of account of the enterprise and the value of assets shall include the brand value, value of goodwill, value of copy right, patent, permitted use, collective mark etc., and seen from this basis, the acquisition of trademarks is also the acquisition of total business of the products and also assets in term of section 5(a) of the Act, and therefore in the interpretation of section 5(a) we should consider ‘combination’ of all the different parts of the acquirer’s business which would include all the assets of the enterprise. He has further argued that the CCI has imposed the penalty of Rs. Five Lakhs only even though a maximum penalty of 1% of the combined value of world-wide assets of the party could have been imposed.

16. We focus our attention in the present appeal on the main issue raised by the Appellant, that in view of the clarificatory notification dated 27.3.2017 and the earlier De Minimis Notification dated 4.3.2016 issued by the Ministry of Corporate Affairs, Government of India under section 54 of the Competition Act, 2002, the enterprise from whom trademarks and other related assets are being acquired had to be compulsorily notified under section 6(2) of the Act as they did not fall within the threshold limits given in the De Minimis Notification dated 4.3.2016. In this connection, we first notice that the Transactions I and II relating to ‘Savlon” and ‘Shower to Shower’ respectively, and the acquisition of the related trademarks and inventory, knowhow and moulds etc. were required to be notified under section 6(2) of the Act.

17. The Appellant/ITC has claimed that it did not notify the transactions to the CCI, which was in the bonafide belief that these transactions were not to be notified, and the imposition of penalty on ITC has caused a loss of its reputation and also because such orders against the Company by the regulatory authorities is required to be disclosed by a public listed company, and the fact of imposition of penalty becomes a blot and casts a shadow on ITC’s corporate governance practice and the state of legal compliances by the Company. On this basis, the Appellant ITC as requested on the issue of imposition of penalty may be considered and dealt with in view of the Ely Lilly judgment of the NCLAT and other matters may be left open.

18. Regarding the other contention of the Appellant that, in view of the De Minis Notification and exemption under item 3 of the Schedule I of the Combination Regulations, the said transactions were not to be notified because the ITC was under a bonafide belief that the transactions did not require to be notified under Section 6(2) since the Transactions had been held as not violating Section 6(1) is a question of law, which  we will not deal in this judgment as the parties have pressed that only the question  of  imposition  of  penalty  may be  considered  in  this judgment.

19. We note that section 5 of the Act stipulates that only certain transactions, only such ‘combinations’ would  require to be notified that exceed the thresholds as stated in section 5(a)(i) & (ii) of the Act. A perusal of 5 makes the following clear insofar as jurisdictional thresholds are concerned when considering the assets and turnover of the parties to the transaction or the those of the group of companies of which they are part :-

20. In addition to the above mentioned jurisdictional thresholds, which are applicable to the acquirer and the acquire companies, it is also required that we see whether the said ‘combination’  is  exempted  from  the  notification  requirement under  the  “De  Minimis’  exemption,  which  is  issued  by  the Ministry of Corporate Affairs, Government of India, using powers available under section 54 of the Act. In particular, the latest notification dated 4.3.2016 and also the clarificatory notification dated 27.3.2017 are relevant in this respect. The De Minimis Notification dated 27.3.2017 is as follows:-

“2017 Notification

"In exercise of the powers conferred by clause (a) of section 54 of the Competition Act, 2002 (12 of 2003), the Central Government, in public interest, hereby exempts the enterprises being parties to -

(a) any acquisition referred to in clause (a) of section 5 of the Competition Act;

(b) acquiring of control by a person over an enterprise when such person has already direct or indirect control over another enterprise engaged in production, distribution or trading of a similar or identical or substitutable goods or provision of a similar or identical or substitutable service, referred to in clause (b) of section 5 of the Competition Act; and

(c) any merger or amalgamation, referred to in clause (c) of section 5 of the Competition Act, where the value of assets being acquired, taken control of, merged or amalgamated is not more than rupees three hundred and fifty crores in India or turnover of not more than rupees one thousand crores in India, from the provisions of section 5 of the said Act for a period of five years from the date of publication of this notification in the official gazette.

Where a portion of an enterprise or division or business is being acquired, taken control of merged or amalgamated with another enterprise, the value of assets of the said portion or division or business and or attributable to it, shall be the relevant assets and turnover to be taken into account for the purpose of calculating the thresholds under section 5 of the Act. The value of the said portion or division or business shall be determined by taking the book value of the assets as shown, in the audited books of accounts of the enterprise or as per statutory auditor's report where the financial statement have not yet become due to be filed, in the financial year immediately preceding the financial year in which the date of the proposed combination falls, as reduced by any depreciation, and the value of assets shall include the brand value, value of goodwill, or value of copyright, patent, permitted use, collective mark, registered proprietor, registered trade mark, registered user, homonymous geographical indication, geographical indications, design or layout- design or similar other commercial rights, if any, referred to in sub-section (5) of section 3. The turnover of the said portion or division or business shall be as certified by the statutory auditor on the basis of the last available audited accounts of the company."

[emphasis supplied]

21. A Press Release was issued on 30.3.2017 by the Press Information Bureau, Government of India subsequent to the DE Minimis  Notification  dated  27.3.2017. This  Press  Releasem which provides insight into the ‘De Minimis’ Notification dated 27.3.2017, is as follows:-

 “Press Release

..It was, however, noted by the Government that the said notification was being applied to Combinations which resulted only from acquisition but was not extended to Merger/Amalgamation and Acquiring of Control Cases. It was also noted that where only a segment/portion/business of an enterprise was being combined with another enterprise, the relevant assets and turnovers attributable to the target segment/portion business were not being considered and instead the transferor's total assets and turnover were being considered for determining the applicability of the exemption Stakeholders had been voicing their concerns over the issue and in keeping with the Government's principle of Minimum Government and Maximum Governance, the Ministry has issued fresh notifications No. S.O. 988 (E) and No. S.O. 989(E) dated 27.03.2017 wherein, the Central Government intends to provide:

(i) Clarity on the applicability of the threshold exemption limits to all forms of combinations as referred under Section 5 of the Act.

(ii) Clarity on the methodology to he adopted for calculating the relevant assets and turnover of the target when only a portion or segment or business of one enterprise is being combined with another.

With the issue of these notifications, combinations falling within the threshold limits would not require to be filed before the Competition Commission of India. The reform is in pursuance of the Government's objective of promoting Ease of Doing Business in the country and is expected to make India a more attractive destination for Foreign Direct Investment. The notification is expected to enable greater freedom to industry in taking legitimate business decisions towards further accelerating India's economic growth. "

(emphasis supplied)

22. Now follow the judgment of this Tribunal in the matter of Eli Lilly and Company Vs. CCI (TA(AT) Company Appeal No. 03  of  2017,  wherein  this  Tribunal  dealt  with  the  issue  of calculation of the assets and turnover of the company from which such assets and turnover are being acquired. The relevant part of the Eli Lilly judgment is as follows:-

"26. The intention behind the Notification dated 04.03.2011 issued by the Central Government under Section 54 of the Act was to exempt certain transactions due to their small size. The intention of the Government is made clear by the Press Release dated 30.03.2017 where it is stated that "combinations falling within the threshold limits would not require to be filed before the Competition Commission of India. The reform is in pursuance of the Government's objective of promoting Ease of Doing Business in the country and is expected to make India a more attractive destination for Foreign Direct Investment. The notification is expected to enable greater freedom to industry in taking legitimate business decisions towards further accelerating India's economic growth.

27. This makes it clear that the Central Government did not wish that the CCI interfere in acquisition of an enterprise that was de minimis or acquisition of assets that were de minimis.

28. For the purpose of the calculation of assets and turnover what is being acquired is relevant, as the assets/turnover of what is left over with the sellers after the acquisition will have no role to play in the context of the business conducted by the purchaser post-acquisition.’’

(Emphasis as in Judgment)

23. We note that the clarificatory notification dated 27.3.2017 issued by the Ministry of Corporate Affairs makes it clear where a portion of an enterprise or division or business is being acquired, taken control of, merged or amalgamated with another enterprise, the value of assets of the said portion or division or business and are attributable to it, shall be the relevant assets and turnover to be taken into account for the purposes of calculating the threshold under section 5 of the Act. The Press Release issued on 30.3.2017 gives information to the public about the nature of this notification and mentions that this notification is to provide clarity on the calculation method for assets and turnover because such a matter was causing confusion among the business entities. The said notification, therefore, being clarificatory in nature, applies with retrospective effect as is clear from various judgments cited by the Learned Counsel for the Appellant, which have been referred to earlier in this judgment, and we follow the principle laid down ion those judgments.

24. We note that this Tribunal in its judgment dated 12.3.2020 in the matter of Eli Lilly and Company (supra) considered that the De Minimis notification dated 4.3.2011, and Notification dated 4.3.2016, both issued by the Ministry of Corporate Affairs under Section 54 of the Act provide exemption to certain transactions due to their small size. Further, the Press Release dated 30.3.2017 states and informs that for combination that fall within the threshold limits, there would be no requirement for their filings to be notified before the CCI. After considering the De Minimis notification dated 4.3.2016 and the Press Release dated 30.3.2017, this Tribunal decided that for the purpose of calculation of assets and turnover, what is being acquired is relevant as the assets and turnover of what is left over with the seller after the acquisition will not have any role to play in the context of the business of the purchaser/acquirer after the acquisition. On this basis, this Tribunal set aside the order of CCI in the Eli Lilly case.

25. Following the judgment of this Tribunal in the Eli Lilly case, we are of the clear view that the principle laid down in this judgment will apply in the facts of the present case too.

26. We  also  take  note  of  the  judgment  in  the  matter  of Commissioner of Income Tax v Gold Coin Health Foods Pvt. Ltd. [(2008) 9 SCC 622] and also in the matter of Commissioner of Income Tax (Central)-I, New Delhi Vs. Vatika Township Private Limited [(2015) 1 SCC 1], in which Hon’ble Supreme Court has held as follows:-

"If a legislation confers a benefit on some persons but without inflicting a corresponding detriment on some other person or on the public generally, and where to confer such benefit appears to have been the legislators' object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect."

27. We note that the relevant turnover attributable to the two trademarks ‘Savlon’ and ‘Shower to Shower’, which are being transferred from Johnson and Johnson Pvt. Ltd. and Johnson and Johnson Pte. Ltd. respectively to ITC is Rs.68.37 crores, as is stated by the Appellant in appeal paperbook Vol.III at page 414. This figure is quite clearly less than the threshold limit of Rs. 750 cores for total turnover that would be exempted in view of the De Minimis Notification. Therefore, both Transactions I and II would be exempt from imposition of any penalty under Section 43A.

28. Thus, it is clear that the clarificatory notification dated 27.3.2017 gives a purposive construction to the earlier De Minimis notifications dated 4.3.2011 and 4.3.2016 and therefore, the notification dated 4.3.2016 would have retrospective effect insofar as the jurisdictional threshold for Transactions I and II are concerned. In view of the fact that the total turnover of the acquisition i.e. acquired trademarks ‘Savlon’ and ‘Shower to Shower’ is only Rs.68.37 crores, we are of the view that ITC would not be required to notify the Transactions I and II before the CCI as these transactions would be exempt in the light of the De Minimis notification. We, therefore, hold that the penalty imposed by the CCI on ITC for the reason it did not notify the Transactions I and II under section 6(2) of the Act, should not have been imposed and to that extent we set aside the Impugned Order of the CCI. Insofar as other issues relating to the ‘combination’ and which have not been pressed in the present appeal during arguments are concerned, we only wish to mention that those issues are left open and not decided in this judgment.

29. On the basis of aforementioned discussion, we hold that no penalty was required to be imposed on the Appellant and hence we set aside the Impugned Order. The appeal is, therefore, allowed to the limited extent of the issue of penalty.

30. In the facts of this case, there is no order as to costs.