ADANI POWER LIMITED Vs. UTTAR HARYANA BIJILLI VITRAN NIGAM LIMITED AND ORS.
LAWS(ET)-2015-10-11
CENTRAL ELECTRICITY REGULATORY COMMISSION
Decided on October 13,2015

Adani Power Limited Appellant
VERSUS
Uttar Haryana Bijilli Vitran Nigam Limited And Ors. Respondents

JUDGEMENT

- (1.) THE petitioner, Adani Power Limited, has filed the present petition under section 79 of the Electricity Act, 2003 (the Act) read with Article 13 of the Power Purchase Agreements dated 7.8.2008 claiming compensation for 'Change in Law' events which have adverse financial impact on the cost and revenue of the petitioner for sale of electricity to the respondents. The petitioner has made the following prayers: "(a) Declare that the subsequent events as mentioned above are events of 'Change in Law'; (b) Direct the Respondents to make the payment of the compensation in accordance with the methodology as indicated in the petition for the aforementioned Change in Law events from the date of commencement of power supply under the respective PPA's till the date of order; (c) Direct the Respondents to pay in the interim 95% of the amount payable towards Change in Law from the date of commencement of supply till date subject to adjustment based on final order of Hon'ble Commission; (d) Direct the Respondents to pay Late Payment Surcharge as applicable under the PPAs for the period of delay from the date of notification of Change in Law; (e) Direct the Respondents to make payment for the future claims of Change in Law events mentioned in this petition at applicable rates prevailing from time to time as per the methodology approved and in accordance with the terms and conditions of the PPA. (f) Pass such further order(s) as this Hon'ble Commission may deem just and proper in the fact and circumstances of the case and in the interest of justice."
(2.) THE petitioner, a subsidiary of Adani Enterprises Ltd., has set up a generating station with a total capacity of 4620 MW in the Special Economic Zone at Mundra in District Kutch in the State of Gujarat (hereinafter "Mundra Power Project"). Mundra Power Project of the petitioner consists of 4 units of 330 MW each sub -critical and 5 units of 660 MW each supercritical technology. Based on the Competitive Bidding carried out by Haryana Power Generation Corporation Ltd. (HPGCL) on behalf of the distribution companies in the State of Haryana, namely, Uttar Haryana Bijli Vitran Nigam Ltd. and Dakshin Haryana Bijli Vitran Nigam Ltd., the petitioner emerged as the successful bidder for supply of 1424 MW to Haryana Utilities. Accordingly, PPAs were executed between Adani Power Ltd. and UHBVNL/DHBVNL on 7.8.2008 for supply of 1424 MW of power from Units 7, 8 & 9 of the Mundra Power Project.
(3.) THE petitioner has submitted that certain events have occurred after 7 days prior to the bid deadline (i.e. 19.11.2007) which qualify as change in law for the purpose of compensation under Article 13.1.1 of the PPA. These events are as under: (a) Installation of Flue Gas Desulphurizer (FGD) as a condition imposed by Environment Clearance dated 20.5.2010; (b) Increase in Auxiliary Consumption from 6.5% to 8.42% on account of increase in Auxiliary Consumption due to FGD impacting Capacity Charges; (c) Additional Operational Expenditure on FGD; (d) Levy of Customs Duty on electricity exported from SEZ to Domestic Tariff Area as imposed by section 60 of the Finance Act, 2010; (e) Levy of Green Energy Cess pursuant to enactment of Gujarat Green Cess Act, 2011 read with Gujarat Green Cess Rules, 2011; (f) Change in rate of royalty payable on domestic coal as imposed by Government of India Notification dated 10.5.2012 @ 14% ad -valorem on the price of coal; (g) Increase in sizing charges of coal charged by Coal India Ltd. Vide notification dated 17.6.2014; (h) Change in Surface Transportation charges charged by Coal India Ltd.; (i) Levy of Central Excise Duty on domestic coal imposed by Finance Act, 2011 and 2012; (j) Levy of clean energy cess on coal by Finance Act, 2010 and Notification No. of 2014 dated 11.7.2014; (k) Increase in Busy Season Surcharge on transportation of coal through railways; (I) Increase in Developmental Surcharge levied on transportation of coal by railways; (m) Levy of service tax on transportation of goods by railways; (n) Change in pricing of coal from Useful Heat Value basis to Gross Calorific value with effect from 1.1.2012; (o) Change in classification of coal for trainload movement; (p) Levy of minimum alternate tax on power plants situated in SEZ under sub -section (6) of section 115JB of Income Tax Act, 1961; (q) Linking railways tariff revision with movement in cost of fuel.;


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