M.KARPAGA VINAYAGAM, J. - (1.)THE Tamil Nadu Electricity Board, through its Chief Engineer and Chairman, has filed this Appeal as against the impugned order passed by the Tamil Nadu State Commission dated 31.1.2011 granting the relief in favour of M/S. Sree Rengaraaj Power India (P) Ltd, the first Respondent herein. The short facts are as under:
(i) M/S. Sree Rengaraaj Power India (P) Ltd (Respondent Company) is having a captive power generating plant with a capacity of 8 MW at Perundurai, Erode District, Tamilnadu. The Respondent Company was incorporated on 8.5.2003 with the object of generating electrical power by conventional and non conventional methods.

(ii)The Appellant Board had issued approval for wheeling of power through its letter dated 12.12.2005 from 8 MW generator to their three sister concerns.

(iii) After the grant of approval for wheeling of 8 MW of power, the Respondent Company got another approval from the Appellant for the parallel operation of 8 MW DG sets through its letter dated 21.12.2005.

(iv) On 24.5.2007, the energy wheeling agreement was executed between the Appellant and the Respondent Company for a period of 03 years.

(v) The Respondent Company has been wheeling energy to its sister concerns since November, 2007. On 14.11.2009, the Respondent Company reported to the Appellant that even though it had the approval for wheeling of 8 MW power, the Company was not able to generate the said power and as the Respondent Company would be able to wheel only 6 MW of power, it requested the Appellant to reduce the approval for wheeling from 8 MW Power to 6 MW power.

(vi) However, the Appellant through its reply letter dated 17.12.2009, directed the Respondent Company to obtain the prior approval for the same from the State Regulatory Commission under the provisions of Intra State Open Access Regulations, 2005.

(vii) Accordingly, the Respondent Company filed a Petition before the State Commission in DRP No.3 of praying for the direction to the Tamil Nadu Electricity Board to revise the energy wheeling agreement from 8 MW power to 6 MW power and to reduce the wheeling and transmission charges to the extent of 6 MW of power wheeled.

(viii) The State Commission passed the final order after hearing the parties on 31.1.2011 granting the relief to the Respondent by treating the Respondent Company as Short Term Open Access Customer after rejecting the objection raised by the Tamil Nadu Electricity Board that the Respondent Company was a Long Term Open Access Customer.

(ix) Aggrieved over this, the present Appeal has been filed.

(2.)THE Learned Counsel for the Appellant has challenged the impugned order on the following grounds:
(i) The State Commission wrongly held that the Respondent Company is Short Term Open Access Customer. The Energy Wheeling Agreement entered into between the Appellant and Respondent for three years cannot be held to be short term open access as it is contrary to Note -1 of clause 6 of ISOA Regulations (Intra State Open Access Regulations), 2005.

(ii)The State Commission was not right in declaring that the Respondent Company was a short term open access customer when the Respondent Company itself filed a Petition before the State Commission under Clause 12 (h) of the ISOA Regulations which deals with the Long Term Open Access Customers.

(iii) The State Commission has no jurisdiction to decide the application under Clause 13 (h) of ISOA Regulations, 2005 which deals with Short Term Open Access Customers.

(iv) At any rate, the State Commission was not justified in not awarding any compensation to the Appellant Board while granting the relief to the Respondent Company.

(3.)THE crux of the submission of the Appellant is that the State Commission ought to have treated the Respondent Company as a Long Term Open Access Customer as per Note -1 of Clause 6 and as such the order impugned treating the Respondent Company as a Short Term Open Access Customer by invoking Clause 13 (h) of the ISOA Regulations, 2005 is wrong.
We have heard the Learned Counsel for both the Appellant and the Respondent Company and carefully considered their submissions.

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