P.S.DATTA, J. - (1.) THESE two appeals are being disposed of together as they arise out of common facts though through separate but identical orders passed by the Gujarat Electricity Regulatory Commission, being order dated 8.12.2010 concerning petition No. 1044 of 2010 and the order dated 18.12.2010 in relation to petition no. 1048 of 2010. The orders dated 8.12.2010 and 18.12.2010 relate to the present appeal nos. 21 of 2011 and 22 of 2011 respectively.
(2.) IN appeal No. 21 of 2011 the appellant is Gujarat Urja Vikas Nigam Ltd., a successor entity of the erstwhile Gujarat Electricity Board, now engaged in the undertaking of bulk purchase of electrical energy from the generating Companies and others and bulk supplier thereof to the distribution companies in the State. The respondent No. 2 in this appeal is Torrent Power Ltd. carrying on the business of power generation in the State of Gujarat and also distribution of power in the cities of Ahmedabad, Gandhinagar and Surat. It has a generating station of 3x 382.5 MW Combined Cycle Power Plant at Surat in addition to 500 MW in Ahmedabad. The third respondent is the State Load Dispatch Centre operated by Gujarat Energy Transmission Corporation Ltd., while the respondent No. 1 is the Gujarat Electricity Regulatory Commission.
(3.) IT was on 4th of January 2000 that the Central Electricity Regulatory Commission (CERC) passed an order concerning implementation of Availability Based Tariff (ABT) in terms of which unscheduled interchange charges and energy imbalance charges were introduced vis -a -vis inter State dealings of generating companies and distribution utilities within the State. The introduction of intra -State ABT system was left to the State Commissions to implement. The appellant contends that the entire effect of the Unscheduled Interchange Charges and Energy Imbalance Charges involved in the Inter -State dealings is absorbed by the State Electricity Board or the Principal Company in the State undertaking the job of bulk purchase and bulk Supply activities in the capacity of being a member of the Regional Pool Account, such as was the appellant in the State of Gujarat. To the limited extent of generating companies in the State of Gujarat giving availability and dispatching electricity to purchasers outside the State of Gujarat pursuant to grant of Open Access based on the Scheduling given by such outside purchasers, the generating companies were subjected to settling the charges with the appellant based on the deviation attributable to them. These State Utilities were not sharing either the benefits of or the burden of energy imbalances on pooled basis as between the State of Gujarat entities as a whole and other States/Regional entities. Such energy imbalances with other States and other State Utilities as well as Central Public Sector entities were settled treating the appellant as the net purchaser and net seller of electricity. According to the appellant ,the introduction of the intra -State ABT system in the State was considered by the Commission by the order dated 11.8.2006 whereby the Commission dealt with the aspects of bringing the generating system, the distribution licensee and the other persons under the purview of intra - State ABT mechanism. That order provided for a trial run for three months i.e. up to 30.11.2006, which according to the appellant, continued till 4.4.2010 and during this trial period all the commercial settlements were to be based on the existing arrangement according to which the energy imbalance account including the un -scheduled interchange (UI) was to be settled between the appellant and the inter -State agencies excluding the State Utilities, the respondent No. 2 included. The CERC framed and notified Central Electricity Regulatory Commission (Open Access in Inter -State Transmission) Regulations, 2008 (hereinafter referred to as Open Access Regulations, 2008) of which Regulation 20 which the appellant laid stress upon will be discussed in the course of this decision. By the order dated 7.5.2008 the Central Commission decided that the Regional Load Dispatch Centre will coordinate the scheduling of Ultra Mega Power Projects and that of the other large privately owned generating stations ( of 1000 MW or larger size)in which the States other than the host State had substantial permanent share of 50 % or more , while the generating stations not meeting this criterion were to be scheduled by the State Load Dispatch Centre. By the letter dated 4.10.2008 the respondent No. 2 sought clarifications in respect of applicability of ABT for supply of firm power from Sugen Mega Power Project (Generating plant of TPL at Surat), and in a meeting held on 14.10.2008 it was clarified that ABT system would be applicable to Sugen Mega Power Plant and the decision was communicated to the respondent No.2 by an order dated 23.10.2008. According to the appellant, the methodology was settled in a meeting held on 28.5.2009 and the minutes of the meeting were circulated by a letter dated 11.6.2009. In the course of judgement we will see the methodology fixed by the respondent No.3. Then, the Central Commission on 7.8.2009 notified the Central Electricity Regulatory Commission (Grant of Connectivity, Long Term Access and Medium Term Open Access in Inter -State Transmission and related matters) Regulation, 2009 of which regulation 30 which the appellant banks upon will be discussed in the sequel. According to the appellant, till the intra -State ABT mechanism was not implemented, the energy imbalance charges, namely UI charges for over -drawal or under - generation and for under drawl or over generation in the case of generating companies and utilities within the State undertaking inter - State activities were to be determined as provided for in the Regulation 20 of the Open Access Regulations, 2008 and Regulation 30 of the Open Access Regulations, 2009. The charges applicable to them were related specifically to the energy supplied by the generating stations in the State of Gujarat measured at their periphery. These generating stations were not concerned with the Inter -State pooled energy imbalance charges applicable to the state utility dealing with unscheduled inter -changes vis - à -vis outside utilities such as the case of the appellant in Gujarat.;