V.J.TALWAR,J. - (1.) HARYANA Power Generation Company Limited is the Appellant. The Haryana Electricity Regulatory Commission (Commission) is the Respondent herein.
(2.) THE Appellant, Haryana Power Generation Corporation Limited is a generating company fully owned by the Government of Haryana. The Commission has passed an order on 31.3.2011 in pursuance of directions issued to the Commission by this Tribunal in its judgment dated 31.7.2009 in Appeal No. 42 of 2008 and judgment dated 26.4.2010 in Appeal Nos. 72 and 141. Aggrieved by this order of the Commission, the Appellant has filed this Appeal.
(3.) BRIEF Facts of the case are as under: a. On 8.5.2007 the Commission had issued Tariff orders determining the generation tariff and for the bulk supply business of the Appellant for the FY 2007 -08. Aggrieved by these orders of the Commission the Appellant filed review petition before the Commission. The Commission disposed off the review petition by an order dated 26.9.2007 accepting few of the contentions of the Appellant and rejecting the rest of the Contentions. b. Aggrieved by the order of the Commission dated 8.5.2007 and review order dated 26.9.2007 the Appellant filed Appeal No. 42 of 2008 against these orders before this Tribunal. c. While the Appeal No. 42 was pending before the Tribunal, the Commission issued Tariff order on 21.4.2008 fixing the generation tariff for FY 2008 -09. The Appellant filed review petition against the order dated 21.4.2008, which was dismissed by the Commission vide its order dated 19.11.2008. d. Aggrieved by the order of the Commission dated 21.4.2008 and the review order dated 19.11.2008 the Appellant filed Appeal No. 72 of 2009 before this Tribunal. e. On 18.5.2009 the Commission passed tariff order fixing the generation tariff for the FY 2009 -10. Aggrieved by this order of the Commission dated 18.5.2009, the Appellant filed Appeal No. 141 of 2009 before this Tribunal. f. The Tribunal decided the Appeal No 42 of 2008 on 31.7.2009 directing the Commission, inter alia, to carry out a station -wise study to determine the Station Heat Rate of the power plants of the Appellant and to re -determine the Station Heat Rate based on the results of such study. g. The Tribunal decided the Appeal nos 72 and 141 of 2009 vide judgment dated 26.4.2010 and in respect of the issue relating to Station Heat Rate it reiterated its directions given to the Commission in Appeal No. 42 dated 31.7.2009. h. In accordance with the directions of this Tribunal, the Appellant got conducted the Energy Audit of its Panipat TPS (all units except unit no. 1 which was under R&M) and Unit No. 3 Faridabad TPS from Evonik Energy Services India Pvt. Ltd in March - April 2010. The report of Energy Audit was submitted to the Commission in September 2010. The Energy Audit for Unit No. 1 and 2 Faridabad TPS could not be conducted as the said units had been phased out by that time. i. The Appellant submitted revised data for determination of Tariff for FY 2008 -09 and 2009 -10 to the Commission on 6.9.2010 for the implementation of directions given in Tribunal's Judgment dated 26.4.2010 in respect of Appellant's Appeal Nos. 72 and 141 of 2009. j. On 16.9.2010 the Appellant submitted the revised tariff sheet for the FY 2007 -08 on the basis of the Energy Audit Reports for the implementation of the Tribunal Judgment dated 31.7.2009 in respect of Appellant's Appeal Nos. 42 of 2008. k. The Commission passed a common order implementing the directions of this Tribunal given in Appeal No. 42 of 2008, Appeal No. 72 and 141 of 2009. l. Aggrieved by this implementation order of the Commission dated 31.3.2011, the Appellant has filed this Appeal. Assailing the impugned order of the Commission, the Learned Counsel for the Appellant made the following submissions: a. The Commission has not only fixed lower Station Heat Rate than the appellant claimed based upon the Energy Audit Reports but even lowered the Station Heat Rate earlier allowed by the Commission in its earlier tariff orders. b. The Commission has erred in fixing the Station Heat Rate for the previous years i.e. for FY 2007 -08 and 2008 -09 on the basis of the claimed Station Heat Rate for the year 2009 -10 by a novel method of reverse calculations after allowing 1.5% adjustment for reasonable deterioration due to lapse of time and that too without any basis as going by the same principle the Commission should have allowed Station Heat Rate @ 1.5% more than the claimed Station Heat Rate for the FY 2009 - 10 i.e. 1.5% more than that of 3225, which is not the case as the Commission has allowed Station Heat Rate 3100 for the Units 1 -4 and 2600 for the Units 5 and 6 of Panipat TPS . c. The Commission erred in fixing the Station Heat Rate for the previous years i.e. for FY 2007 -08 and 2008 -09 on the basis of the claimed Station Heat Rate for the year 2009 -10 ignoring the fact that for the year FY 2009 -10, the appellant had revised the claim for Station Heat Rate as Unit 1 of Panipat TPS had undergone R&M and therefore the figures of Station Heat Rate had been revised based upon the improved figures and that cannot be the basis of assuming lower Station Heat Rate, when the Units 1 -4 were underperforming due to lack of R&M and thus for FY 2007 -08 and 2008 -09 the commission should have allowed the claimed Station Heat Rate as the same was actual, legitimate, realistic and not unreasonable. d. The impugned order dated 31.3.2011 passed by the Commission is not in consonance with the direction of this Tribunal as it was specifically held that if the study would indicate substantial variation (say more than 2 -3%) then the benchmarks adopted by the State commission, after adjusting for reasonable deterioration due to lapse of time, may be re - determined by the State Commission. Despite this, the Commission has fixed lower Station Heat Rate than what the appellant had claimed on the basis of Audit Reports, which clearly showed that there was a deviation of 2.26% to 8% for the Units 1 -6 of Panipat TPS and a deviation of 15.33% for the Unit No. 3 of FTPS Faridabad. The deviations were for the reason that power stations of the appellant have outlived their normal useful life i.e. 25 years and therefore the Commission ought to have adopted a pragmatic approach and should have allowed the claimed Station Heat Rate on the actual basis. e. The submission of the learned counsel for the Respondent Commission to the effect that the Commission is allowing the Renovation and Modernization expenditure in the tariff is without any basis and contrary to the record as the Commission has not allowed any such expenditure and, in fact, the appellant has not claimed capital expenditure incurring towards Renovation and Modernisation and are only claiming depreciation, interest and Return on Equity on the expenditure so incurred as per the Regulations issued by the Commission in the year 2008. f. As a matter of fact, the Commission had not allowed the expenditure to be incurred on Renovation and Modernization of its Units at Panipat and Faridabad as proposed in the Business Plan filed by the Appellant before the Commission on 08.04.2009. ;