M.KARPAGA VINAYAGAM,J. - (1.) APPEAL No.194 of 2010 and 2 of 2011 are being disposed of through this common judgement since the issues raised in both the Appeals are the same.
(2.) LET us now see the facts of these Appeals one by one.
(3.) IN Appeal No.194 of 2010, Paschim Gujarat Vij Company Ltd., Rajkot is the Appellant. This Appeal has been filed as against the impugned order of Gujarat Electricity Regulatory Commission (State Commission) dated 23.8.2010. In this order, the State Commission directed the Appellant to allow set off for the captive generation by the 2nd Respondent Kutch Salt and Allied Industries Limited against the energy supplied effective from the date of the commissioning of the Wind Turbine Generator instead of the date of the signing of the wheeling agreement with the Appellant by Kutch Salt and Allied Industries Limited (R -2). The relevant facts in this case are as follows: Page 3 of 46 Judgement in Appeal No. 194 of 2010 and 2 of 2011 (a) The Appellant is the distribution licensee in the area of West Gujarat. Gujarat Electricity Regulatory Commission is the 1st respondent. The Kutch Salt & Allied Industries Limited the 2nd Respondent, is a manufacturer and exporter of industrial grade salt and marine gypsum. It was permitted to set up three Wind Turbine Generators of 1.5 MW each. Gujarat Energy Transmission Corporation Ltd (GETCO) the 3rd Respondent is a transmission licensee. The 4th Respondent is the Gujarat Urja Vikas Nigam Ltd (GUVNL) is the Trading Licensee. It purchases electricity in bulk from the generating company and supplies to the distribution companies including the Appellant. (b) The Kutch Salt & Allied Industries Ltd (R -2) had installed three Wind Turbine Generators of 1.5 MW each for its own use. These Wind Turbine Generators were commissioned on 1.10.2009. For the purpose of wheeling of power generated from these Wind Turbine Generators to its industrial units, the Kutch Salt & Allied Industries Ltd (R -2) executed a Wheeling Agreement with the Appellant on 24.12.2009. As per Clause 6 of this agreement the set off of wind energy would be given from the date of commissioning Page 4 of 46 Judgement in Appeal No. 194 of 2010 and 2 of 2011 of the Wind Turbine Generators or the date of signing of Wheeling Agreement whichever is later. (c) In this case though the Wind Turbine Generators was commissioned on 1.10.2009, the Wheeling Agreement was entered into and signed only on 24.12.2009. The Kutch Salt & Allied Industries Ltd (R -2) submitted invoices along with a forwarding letter dated 13.2.2010 for the energy injected in to the Appellant's grid from 1.10.2009 i.e. from the date of commissioning of the plant. The Appellant, through its reply dated 15.3.2010 rejected the request of set off of units generated from the date of commissioning to the period prior to execution of Agreement on the strength of the clause 6 of the Agreement which provides that the R -2 is entitled for set off only from the date of execution of the agreement which is a later date i.e. from 24.12.2009. (d) Aggrieved by this rejection, Kutch Salt & Allied Industries Ltd (R -2) filed a petition before the State Commission claiming set off against the energy injected in to the grid from the date of commissioning of the Wind Turbine Generators i.e. from 01.10.2009. (e) The State Commission, after hearing both the parties passed the impugned order dated 23.8.2010 holding Page 5 of 46 Judgement in Appeal No. 194 of 2010 and 2 of 2011 that clause 6 of the agreement dated 24.12.2009 providing for the set off of the energy from commissioning of the plant or from the date of the agreement whichever is later, is in violation of the tariff order of the State Commission dated 30.1.2010. Consequently, the State Commission directed the Appellant to give set off to Kutch Salt & Allied Industries Ltd (R -2) from the date of the commissioning of the Wind Turbine Generators i.e. from 1.10.2009. (f) Aggrieved by this impugned order, dated 23.8.2010, the Appellant has filed this Appeal in Appeal No.194/2010. Let us now see the facts in Appeal No.2 of 2011. In this Appeal, Paschim Gujarat Vij Company Ltd is the Appellant. This Appeal has been filed by the Appellant as against the order dated 8.11.2010 passed by the State Commission directing the Appellant to allow set off of for the captive generation by Ruchi Soya Industries Limited (R -2) from the date of the commissioning of the plant. (a) The Gujarat Electricity Regulatory Commission is the 1st Respondent. The 2nd Respondent Ruchi Soya Industries is a manufacturer of edible oil and soya foods. It was permitted to set up one Wind Turbine Page 6 of 46 Judgement in Appeal No. 194 of 2010 and 2 of 2011 Generator of 1.5 MW in Rajkot. The Gujarat Energy Transmission Corporation Ltd (Transmission Company) is the 3rd Respondent. (b) Ruchi Soya Industries Ltd (R -2) commissioned 1.5 MW Wind Turbine Generator in Rajkot on 1.10.2009 for the purpose of wheeling of power to its manufacturing units in Gujarat. (c) The Ruchi Soya Industries Ltd (R -2) executed a Wheeling Agreement with the Appellant on 13.1.2010. As per the agreement, the set off of wind energy would be given either from the date of commissioning or from the date of signing of the Agreement whichever is later. In this case, 13.1.2010 is the date of Agreement. 1.10.2009 is the date of commissioning of the Wind Turbine Generators. Accordingly the Appellant allowed setoff from 13.1.2010 being the later date. (d) The State Commission earlier by the order dated 30.1.2010 determined the tariff for procurement of power by the distribution licensees from Wind Turbine Generators. It provided that the Wind Energy Generators shall be eligible to get set off against energy generated by their Wind Turbine Generators. Ruchi Soya Industries Limited (R -2) raised invoices Page 7 of 46 Judgement in Appeal No. 194 of 2010 and 2 of 2011 from the period of commissioning of the plant but the Appellant sent reply to Ruchi Soya Industries Limited (R -2) indicating the clause 6 of the agreement and informing that the Appellant would be liable to pay for the electricity supplied only from the date of the Agreement. (e) Aggrieved over this, the Ruchi Soya Industries Limted (R -2) filed a petition before the State Commission on 11.5.2010 claiming for the set -off of the wheeled energy from the date of commissioning of the plant. (f) The State Commission, after hearing both the parties by the impugned order dated 8.11.2010 decided that since clause 6 of the agreement dated 13.1.2010, is in violation of the earlier tariff order passed by the Commission dated 30.1.2010, the said clause is invalid and consequently, it directed the Appellant to give set off to Ruchi Soya Industries Limited (R -2) from the date of the commissioning of the Wind Turbine Generators i.e. from 01.10.2009 and directed both the parties to amend the Agreement. (g) Aggrieved over this order dated 8.11.2010, the Appellant has filed the present appeal in Appeal No.2 of 2011. Page 8 of 46 Judgement in Appeal No. 194 of 2010 and 2 of 2011;