RAKESH NATH, J. - (1.) THE present appeal has been filed by Silvassa Industries Association against the tariff order dated 13.9.2011 passed by the Joint Electricity Regulatory Commission for the State of Goa and Union Territories ("Joint Commission") in Petition No. 32 of 2011 determining the Annual Revenue Requirement and tariff determination for the Union Territory of Dadra & Nagar Haveli for the financial year 2011 -12.
(2.) THE appellant is an Association of Industries at Silvassa having members who are consumers of the Electricity Department of Union Territory of Dadra and Nagar Haveli. The Joint Commission is the first respondent. The Electricity Department, responsible for distribution of electricity in the Union Territory of Dadra and Nagar Haveli, is the second respondent.
(3.) THE facts of the case are as under: 3.1. On 8th March, 2011, the respondent no. 2 filed petition for approval of ARR for the financial year 2011 -12. The Joint Commission, after the public hearing, passed the impugned order dated 13.09.2011 deciding the ARR and retail supply tariff for the FY 2011 -12 applicable from 1.6.2011. Though by the impugned tariff order the Joint Commission has maintained the tariff of the HT category to the previous year level, it has provided for power purchase cost adjustment allowing the utility to recover the charges according to Power Purchase Cost Adjustment formula from the consumers during the currency of the tariff year. Aggrieved by the impugned order, particularly the provision for power purchase cost adjustment by the respondent no. 2 during the currency of the tariff year, the appellants have filed this appeal. 3.2. The learned counsel for the appellant has submitted as under: (i) The Joint Commission after giving fixed tariff moved on to make it variable, giving a tool in the hands of utility to ask for surcharge in the name of adjustment of power purchase cost even though it is not within the domain of the Joint Commission to fix the tariff of the Central Generating Stations, which is determined by the Central Commission. The Joint Commission could have passed on the fuel cost as determined by the Central Commission in the tariff of the Central Power Generating Stations during the next tariff year. However, the Joint Commission has wrongly allowed the power purchase cost adjustment against the spirit of the Electricity Act, 2003 , the National Electricity Policy and Tariff Policy. ii) The outcome of power purchase cost adjustment is that the appellant could not make any budgetary plan due to variable tariff determined by the Joint Commission. In the current bills, surcharge has been imposed by the respondent no. 2 to the tune of 91 paise per unit increasing the bills by more than 25% retrospectively. The respondent no. 2 has incorrectly taken into consideration the UI charges in the power purchase cost adjustment which was not permissible. iii) Apart from the main contention regarding power purchase cost adjustment, the Joint Commission has failed to take into account the failure of the utility to comply with the directions given by it in the last tariff order for the FY 2010 -11 e.g. the Joint Commission has allowed depreciation of about Rs. 2.1 crores and interest on working capital to the tune of Rs. 13.24 crores without having any data. The distribution losses have been allowed to the tune of 7.9% and no benefit has been passed on to the industry despite significant reduction in distribution losses which is directly attributable to the HT industry. Further no account for the employees cost has been submitted by the respondent no. 2 but in spite of that the Joint Commission has allowed the increase in employees cost from Rs. 2.95 crores to Rs. 3.25 crores. The Joint Commission has also failed to take into account the surplus earned by the Government of India from 2000 to 2011 and has not been given adjustment in the tariff year even though the accumulated surplus should have been passed on to the consumer in a phased manner. The learned counsel for the respondent no. 2 has submitted as under in support of the findings in the impugned order: i) In the present appeal, there cannot be any challenge on the actual implementation of the Power Purchase Cost Adjustment formula as such contention needs be raised only in an appropriate forum and not before the Tribunal; ii) The Joint Commission has rightly covered the scope of the Power Purchase Cost Adjustment in the Tariff Order consistent with the provisions of the Electricity Act, 2003 and the judicial precedence laid down by the Tribunal; iii) He also referred to the findings of the Tribunal in its order dated 11.11.2011 in Suo Motu O.P. no. 1 of 2011, judgment dated 18th May, 2011 in Appeal no. 172 of 2010 and judgment reported as 2011 ELR (APTEL) 137. He also referred to the provisions of the Tariff Policy. He also denied that the formula specified by the Joint Commission in the Tariff Order does not cover any adjustment other than the fuel surcharge. The formula itself is related to Power Purchase Cost Adjustment and not simpliciter fuel surcharge adjustment. Further the formula itself provides for adjustments between the average cost taken by the Commission in the Tariff Order and the average rate of power purchase to be adjusted, namely, the difference between the two to be adjusted. iv) The contention of the appellant regarding alleged surplus for the past period is misconceived. The surplus alleged by the respondent no. 2 does not in any manner arise from the Regulatory tariff determination by the Joint Commission. The respondent no. 2 is a department of the Government of India and does not have any separate legal existence. All funds are allocated to the respondent no. 2 from the funds of the Government of India and all the revenues after meeting the expenses are credited to the Consolidated Fund of India. There was no tariff determination for the years from 2000 as the Joint Commission was not constituted till August, 2008. In the circumstances, all the funds of the respondent no. 2 for the past period have been credited year on year to the Consolidated Fund of India. Thus, there is no question of any surplus in the hands of the respondent no. 2 which is to be passed on to the consumers. Further, the Joint Commission has no jurisdiction for the period prior to its constitution. ;