- (1.) The Maharashtra State Electricity Distribution Company Ltd. (MSEDCL) has filed an Application dated 14 October, 2013, under Section 94(1)(f) of the Electricity Act (EA), 2003 read with Regulation 85 of the MERC (Conduct of Business) Regulations, 2005, for Review of the Order dated 28 March, 2013 in Case No. 117 of 2012. That Order was passed on a Petition by M/s Wardha Power Company Ltd. (WPCL) against the imposition of Cross Subsidy Surcharge by MSEDCL on its captive consumers.
(2.) MSEDCL's prayers are as follows: "1. Admit the present Petition and review the Order dated 28.08.013 to the extent that the order under review dated 28.08.2013 declares that Wardha is captive generating plant and/or compliant with Section 2(8) of the Electricity Act 2003; 2. In the interim, stay the operation of the order under review dated 28.08.2013 to the extent that it finds that Wardha is a captive generating plant and /or compliant with Section 2(8); 3. Ad -interim relief in terms of prayer clause (ii) above 4. Pass any other order as this Commission may deem fit in the interest of justice; 5. To condone any error/omission and to give opportunity to rectify the same. 6. To permit to make further submissions, addition and alteration to this Petition as may be necessary from time to time."
(3.) In its Application, MSEDCL has submitted that: a) At the hearing on 25 and 26 April, 2013 in Case No. 117 of 2012, the Commission had indicated that it would not go into the issue of whether or not WPCL was a captive generating power plant (CPP) in terms of Section 2 (8) of EA, 2003. However, it has ruled on it in its Order dated 28 August, 2013 in Case No. 117 of 2012. The Commission should have given an opportunity to MSEDCL to make its submission on this issue. b) The impugned Order noted MSEDCL's submission as to how WPCL could not meet with the requirements of the definition of CPP contained in Section 2(8). However, the Commission only discussed two aspects of the matter, viz. (1) whether WPCL was incorporated as a Special Purpose Vehicle (SPV), and (2) whether future transferability of WPCL's shareholding would take away its CPP status. The Commission did not consider fundamental issues raised by MSEDCL, including as to whether WPCL was "set up" as a CPP, while rendering its findings at Paragraph 72 onwards. c) WPCL has to prove that it was set up for meeting the power requirements of an identified class, group or set of users (i.e., Captive Users), although 13% of its shareholders are Captive Users. The status of a CPP cannot be assumed at a later point, and shareholders cannot change from time to time. d) In its impugned Order, the Commission held that WPCL was set up as a SPV. However, the documents submitted by WPCL do not justify this claim. e) Thus, the Commission's impugned Order suffers from an error apparent on the face of the record gravely prejudicial to MSEDCL, a misconception on the position of fact as well as law (relating in particular to the issue of whether not the generating plant is at all a CPP in terms of the definition under EA, 2003, inter alia not having been set up as a CPP and primarily for its own use). The Order ought, therefore, to be reviewed by the Commission. ;