RAKESH NATH, J. - (1.) THIS Appeal has been filed by Tamil Nadu Electricity Board ("Electricity Board") against the order dated 17.8.2010 passed by the Tamil Nadu Electricity Regulatory Commission ('State Commission') in DRP No. 33 of 2009 filed by M/s. Saheli Exports Pvt. Ltd. for cancellation of the long term wheeling approval in respect of its power plant for supply to the captive consumers with effect from 1.10.2009.
(2.) STATE Electricity Board is the Appellant. M/s. Saheli Exports Pvt. Ltd. is the 1st Respondent. The State Commission is the 2nd Respondent.
(3.) THE brief facts of the case are as under: 3.1. On 13.12.2004 the Appellant (Electricity Board) granted approval to the Respondent no.1 (M/s. Saheli Exports Pvt. Ltd.) for parallel operation of its proposed Captive Power Plant of 6.12 MW capacity with the Electricity Board's grid as per Section 9(2) and 38(2) of the Electricity Act, 2003, subject to certain conditions. The Respondent no.1 gave its undertaking on 18.3.2005 to abide by the conditions. 3.2. On 28.3.2005 the Appellant accorded approval for wheeling of power from the Captive Power Plant of the Respondent no. 1 through the Appellant's grid to the joint venture companies of the Respondent no.1 subject to certain conditions. According to the approval, the billing and adjustment of energy had to be done as per the Captive Power Plant Policy approved by the Government of Tamil Nadu in its Order No. 48 dated 22.4.1998. The Respondent no. 1 furnished its undertaking on 28.3.2005 to the effect of abiding by the conditions. 3.3. On 24.6.2005, the State Commission notified the Intra -State Open Access Regulations 2005 made applicable from 3.8.2005. The Regulations had a provision that the persons already availing open access to the intra -state transmission and distribution system could continue to avail the open access on the same conditions as stipulated under the existing agreement/contract till the expiry of such agreement/contract. 3.4. On 20.3.2006, the Appellant granted approval to the Respondent no.1 for parallel operation of one Page 4 of 47 Appeal No. 37 of 2011 and IA No. 60 of 2011 additional generating unit of 2.69 MW with the grid over and above the existing capacity of 6.12 MW, subject to certain conditions. 3.5. The State Commission by its order no.2 dated 15.5.2006 determined the transmission charges, wheeling charges and other charges in terms of its Open Access Regulations 2005. The order no.2 was made applicable to all open access customers covered under the Open Access Regulations 2005 which was effective from 3.8.2005 but the existing open access customers where the period of agreement was not specified (open ended) could also opt to come under this order at an earlier date. The State Commission also passed order no.4 dated 15.5.2006 to fix the power purchase and procurement process, including the price for procurement of power by the Appellant from fossil fuel based Group Captive Generating Plants and Co -generation Plants. 3.6. On 24.6.2006, the Respondent no.1 gave its option to the Appellant for order no. 2 dated 15.5.2006 for its existing wheeling agreement. 3.7. On 24.7.2006, the Appellant issued an amendment to its earlier approval dated 28.3.2005 amending the capacity of the Captive Power Plant of the Respondent no.1 for wheeling of power from 6.12 MW to 8.81 MW, subject to certain conditions. In this letter the Appellant also accepted to take payment of all charges in respect of 8.81 MW captive Power Plant of the Respondent no. 1 as per order no.2 and order no.4 of the State Commission on adoption of both the orders by the Appellant. 3.8. Subsequently, the Appellant vide its order dated 6.11.2007 decided the procedure for implementation of order no. 2 and 4 dated 15.5.2006. It was indicated that the retrospective effect for implementation of order no. 2 and order no. 4 dated 15.5.2006 will be dealt with case by case separately. 3.9. On 19.6.2009 the Respondent no. 1 filed a petition bearing DRP no.13 of 2009 regarding implementation of order no. 2 w.e.f. June 2006 and claiming credit of excess energy deducted by the Appellant out of the energy injected by the Respondent no. 1 for wheeling of energy alongwith interest on such credit. The State Commission passed an order dated 16.11.2009 regarding implementation of its order no.2 from July 2006 and allowed payment of excess energy recovered by the Appellant towards the wheeling charges to the Respondent no. 1 for the period July 2006 to November 2007. However, the State Commission did not allow the interest charges. 3.10. Subsequently, the Respondent no.1 filed an Appeal before this Tribunal in Appeal no. 23 of 2010 claiming interest. Accordingly, the Tribunal allowed the payment of interest to the Respondent no. 1 vide its order dated 9.7.2010. 3.11. In the meantime on 24.9.2009 the Respondent no.1 approached the Appellant with a request to withdraw its Captive Power Plant status and reduce the long term open access transmission capacity from 8.81 MW to zero as the Respondent no.1 wanted to operate as a power generating company. The Appellant in turn advised the Respondent no. 1 to approach the State Commission. 3.12. Accordingly, the Respondent no.1 filed a petition bearing DRP no. 33 of 2009 before the State Commission for direction to the Appellant to cancel the long term wheeling approval as Captive Power Plant and refund the amount collected from the Respondent no.1 for the period after 1.10.2009 towards transmission and wheeling charges. The State Commission by its order dated 17.8.2010 directed the Appellant to cancel the wheeling approval dated 28.3.2005 granted to the Respondent no.1 in respect of its power plant for supply to the captive consumers with effect from 1.10.2009 without payment of any compensation to the Appellant. Aggrieved by the order of the State Commission, the Appellant has filed this Appeal. The Appellant is aggrieved that the cancellation of the approval for long term open access has been allowed by the State Commission without any compensation to the Appellant which was due to him as per the Open Access Regulation 2005. The learned counsel for the Appellant made the following submissions in support of its claim. 4.1. The Respondent no. 1 had applied for grant of permission as a long term open access customer and had been availing long term open access only. 4.2. The Respondent no. 1 was originally granted permission to wheel energy on 28.3.2005 as per the policies governed under the State Government's order no. 48. The wheeling charges payable at that time as per the terms and conditions framed by the Appellant under Electricity (Supply) Act, 1948 and State Government's order no.48 were 15% of total energy fed into the grid. 4.3. The Appellant had issued the revised wheeling approval on 24.7.2006 regarding the change in capacity of the Captive Power Plant of the Respondent no.1 from 6.12 MW to 8.81 MW after the issuance of the Open Access Regulation 2005 and order no. 2 dated 15.5.2006 by the State Commission. Thus, the revised approval was a fresh approval. 4.4. After the order no.2 dated 15.5.2006, the State Commission gave option to the Captive Power Plants to be covered under the Regulations, if they desire to do so. Accordingly, the first Respondent had expressed its willingness and opted to be covered under the new provisions of the Intra State Open Access Regulations 2005. 4.5. In fact, the applicability of the law in respect of the first Respondent after the revised approval had been shifted from the State Government order no. 48 framed under the Electricity Supply Act, 1948 to the new provisions of the Intra -State Open Access Regulations 2005. 4.6. In this process, the first Respondent was entitled to the benefits of the order no.2 in respect of the wheeling charges. The Orders no.2 was implemented on September 2007 by the Appellant and from that date onwards the wheeling charges payable by the first Respondent was charged as per the provisions of order no.2 dated 15.5.2006. Subsequently, the State Commission by its order dated 16.11.2009 allowed the benefit to the Respondent no.1 from July, 2006. 4.7. It is apparent from the above proceedings that the first Respondent was treated only under the new Regulations of 2005 and not under the State Government Order no. 48. Further under the State Government Order no. 48, the Respondent no. 1 did not have any right for the third party sale. Thus, the finding of the State Commission that the order no.48 of the State Government is applicable to the Respondent no.1 is not correct. 4.8. The State Commission in the impugned order has acknowledged the wheeling approval dated 28.3.2005 only but did not consider the revised wheeling approval for the enhanced capacity dated 24.7.2006, which was issued subsequent to the Open Access Regulations, 2005 and order no. 2 dated 15.5.2006. 4.9. The first Respondent having taken the benefit of the Open Access Regulations, 2005 and order no.2 dated 15.5.2006 of the State Commission has to be governed under the Regulation 12(h) of the 2005 Regulations with regard to payment of compensation to the Appellant on cancellation of the long term open access approval. The conduct of the parties on records clearly show that the first Respondent had availed long term open access. As such, non -execution of the agreement as per the 2005 Regulations has no effect in this case. The finding of the State Commission that the compensation is not payable as no agreement was signed as per the Regulations is wrong. 4.10. The Appellant has suffered loss because the first Respondent has sought to come out of the long term open access agreement with a view to pay short term open access charges in future which is only 25% of the long term charges. ;