M.KARPAGA VINAYAGAM, J. - (1.) FASHION Suitings Private Limited is the Appellant herein. Ajmer Vidyut Vitran Nigam Limited, the 1st Respondent, is a distribution Licensee in the State of Rajasthan.
(2.) AGGRIEVED by the billing pattern followed by the Distribution Licensee for adjustment of captive consumption and consumption taken by the Appellant from the Distribution Licencee(R -1), the Appellant had filed a petition for adjudication of this dispute between the Appellant and Respondent before the State Commission. By the impugned order dated 22.10.2009, the State Commission dismissed the claim of the Appellant. Being aggrieved over this order of the State Commission, the Appellant has presented this Appeal before this Tribunal. The short facts are as follows: (a) M/s. Fashion Suiting Limited, the Appellant is a High Tension (HT) Consumer of the Distribution Licensee, the Respondent -1 since the year 2006. The Appellant has established a textile mill in Bhilwara in the State of Rajasthan. For the electricity connection, the Appellant has been paying the prescribed tariff including the minimum charges to be paid as determined by the State Commission. (b) In the financial year 2006 -07, the Appellant established 2 x 0.60 MW Wind Energy Generating Station at Jaisalmer District in the state of Rajasthan. The Government of Rajasthan took the initiative of promoting renewable energy generating stations and in particular wind energy generating stations in the State of Rajasthan. The said power plant was set up by the Appellant in pursuance of the said policy of the Government of Rajasthan for promoting generation of electricity from non - conventional energy sources. (c) Since the Appellant had set up a generating station at a different place (Jaisalmer) in the State and the consumption of the Appellant being at a different plant in Bhilwara, the benefit of captive consumption and banking of electricity was granted to the persons including the Appellant. As per the arrangement, to the extent the Appellant was generating electricity and supplying to the grid of the distribution licensee (R -1), a set off was allowed in the consumption of electricity of the Appellant at a different place in the State and treated as captive consumption upon payment of the wheeling charges. To the extent the consumption is not set off and is injected to the grid of the Distribution Licensee(R -1), the Appellant was paid tariff as determined by the State Commission. (d) For the above purpose, the Appellant and the Distribution Licensee(R -1) entered into Wheeling and Banking Agreement dated 12.10.2006 and 23.3.2007 with the R -1 for the two units of 0.60 MW respectively. As per these agreements, the Appellant was generating and supplying electricity to the Distribution Licensee(R -1) and also consuming electricity. The Appellant was entitled to adjust the electricity towards its captive consumption at its textile mill at Bhilwara in the State and the balance unadjusted electricity at the end of the year was taken as deemed sale to the distribution licensee. (e) The fixed charges applicable to the Appellant in the State is in the form of minimum monthly charges calculated with reference to a minimum number of units of electricity. Thus, the consumer is liable to pay for a certain number of units per month irrespective of the fact whether he has actually consumed such minimum electricity. (f) The entire electricity generated by the Appellant is supplied to the Distribution Licensee(R -1). Similarly, the entire electricity consumed by the Appellant is consumed from the distribution licensee. The adjustment for the captive consumption is only by means of energy accounting after the consumption period is over and the meter readings are available with the Respondent -1. (g) In case of banking and wheeling of electricity by the consumer from its captive source, the minimum consumption of the consumer was first to be adjusted against the actual consumption and the balance consumption was to be taken against captive consumption. However, the R -1 (distribution Licensee) changed its energy accounting and billing pattern for consumption of electricity by consumers, by first adjusting the total captive consumption and then adjusting the minimum consumption for the consumers. Thus, in effect, there was free supply of electricity by the generator to the distribution licensee without corresponding adjustment given in the consumption at the consumer end.
(3.) AGGRIEVED by the act of the Distribution Licensee(R -1) of having changed its billing pattern for consumption of electricity by the consumer, the Appellant filed the petition before the State Commission to adjudicate and request the relief. However, the State Commission dismissed the said petition mainly on the ground that methodology was adopted on the basis of the Regulation and therefore the State Commission cannot give any relief to the Appellant. Hence, this Appeal. The Learned Counsel for the Appellant has raised the following grounds as against the impugned order: (a) The impugned order holding that the electricity generated by the Appellant from its power plant is required to be adjusted against the minimum charges payable by the Appellant, is wrong since minimum charges are payable irrespective of the level of consumption. (b) The State Commission has not adjusted the mandatory minimum charges paid towards the actual consumption first and any balance towards the electricity injected by the Appellant from its power plant without considering the fact that minimum charges are levied by the Distribution licensee for the purpose that the consumer guarantees the minimum consumption during the month. (c) The State Commission has wrongly interpreted the provisions of the Agreement between the parties. The object of the electricity Act and the policies framed there under is for the promotion of the non - conventional source of generation of electricity and also for promotion of captive generation and consumption of electricity. The policies of the State Government are also towards the same end. In such circumstances, the State Commission ought to have interpreted the agreement and arrangement between the parties in the light of the object of the Act and the applicable policies. (d) As a matter of fact, the State Commission has interpreted the agreement earlier in previous cases by directing for the consumption first towards the minimum charges paid and then for the electricity injected from the captive generating stations. This interpretation was reasonable since this would result in licensee requiring full cost and at the same time, the generating company be compensated for the electricity generated. So, deviation from the earlier stand taken by the State Commission in the previous cases which were recognised and endorsed by this Tribunal, now the State Commission has given an erroneous interpretation of the provisions of the Agreement between the parties. (e) The State Commission relied on Regulation 115 of the Rajasthan Electricity Regulatory Commission (Terms and Conditions for Determination of Tariff) Regulations to contend that the Appellant has consciously made its option and as such the claim of the Appellant is contrary to the provisions of the Regulation. This finding is wrong since tariff Regulations do not provide for any different methodology for energy account and as such, the said Regulations would support the claim of the Appellant. ;