- (1.) The 2nd respondent herein, the Gujarat Electricity Regulatory Commission is a body constituted under Section 82 of the Electricity Act, 2003 (hereinafter referred to as "the Act"). In exercise of its statutory powers under Sections 61(h), 62(1)(a) and 86(1)(e) of the Act the 2nd respondent issued Order No.2 of 2010 dated 29.01.2010 (hereinafter referred to as the "1st Tariff Order") determining the tariff for procurement of power by the Distribution Licensees in Gujarat from Solar Energy Projects. The said order was issued after an elaborate consideration of the various relevant factors including the policy guidelines of the State of Gujarat and Union of India. Under the said order, tariff for procurement of electricity generated by PROJECTS employing Solar Photovoltaic (SPV) Technology was fixed at Rs.15 per kWh for the initial 12 years starting from the date of commercial operation of the project and Rs.5 per kWh from the 13th year to 25th year. The said order was declared to have had come into force w.e.f. 29.01.2010. Various financial and operational parameters taken into consideration for determining the tariff are mentioned at para 4 of the said Order2. One of the factors taken into consideration is the 'Rate of Depreciation'. It is specified at para 5 of the Order that the tariff fixed under the said Order "took into account the benefit of accelerated depreciation under the Income Tax Act and Rules". It is further declared that "for a project that does not get such benefit, the Commission would, on a petition in that respect, determine a separate tariff taking into account all the relevant facts."
(2.) The 1st respondent produces electric energy (power) from one of the PROJECTS. The appellant and 1st respondent3 entered into a Power Purchase Agreement (PPA) dated 09.12.2010 for sale and purchase of electricity from the 5 MW project to be established by the 1st respondent in Surendra Nagar district of Gujarat. The provisions relevant for the dispute in the present appeal are Clauses 5.1 & 5.2, "Article 5: Rates and Charges 5.1 Monthly Energy Charges: GUVNL shall pay to the Power Producer every month for Scheduled Energy/Energy injected as certified in the monthly SEA by SLDC the amounts (the "Tariff") set forth in Article 5.2. 5.2 GUVNL shall pay the fixed tariff mentioned hereunder for the period of 25 years for all the Scheduled Energy/Energy injected as certified in the monthly SEA by SLDC. The tariff is determined by Hon'ble Commission vide Tariff Order for Solar based power project dated 29.01.2010. Tariff for Photovoltaic Project: Rs.15/kWh for First 12 years and Thereafter Rs.5/kWh from 13th Year To 25th Year. Above tariff shall apply for solar projects commissioned on or before 31st December 2011. In case, commissioning of Solar Power Project is delayed beyond 31st December 2011, GUVNL shall pay the tariff as determined by Hon'ble GERC for Solar Projects effective on the date of commissioning of solar power project or above mentioned tariff, whichever is lower." and Clauses 12.8 & 12.10 of the said PPA.
(3.) However, after entering into the abovementioned PPA, respondent no.1 decided to change the PROJECT'S location. Therefore, a Supplemental Agreement was entered into between the appellant and respondent no.1 on 07.05.2011 making appropriate and necessary modifications to the PPA dated 09.12.2010. However, Articles 5.1 and 5.2 of the original PPA remained unaltered.;