- (1.) Wardha Power Company Limited (hereinafter referred to as "WPCL") submitted a Petition on 20 February, 2014 under Sections 142 and 146 of the Electricity Act, 2003 (hereinafter referred to as "Electricity Act") against Reliance Infrastructure Limited (hereinafter referred to as "RInfra"). The Petition is regarding a dispute related to the medium -term PPA signed between the parties, on which, the Commission had issued Orders in Case No. 38 of 2012 and Case No. 8 of 2013.
(2.) The Petitioner has made the following prayers in the present Petition: - "a) Initiate proceedings under Section 142 of the Electricity Act, 2003 for the willful violation of the directions of the Hon'ble Commission by the Respondent in deducting capacity charges contrary to the provisions of the PPA and the principle laid down by the Hon'ble Commission; b) Hold and declare that the calculation and deduction of capacity charges of Rs. 21,94,44,381/ - relating to the period of April, 2012 to November, 2012 along with interest of 2,40,06,306/ - by the Respondent from the bills of the Petitioner is wrong; c) Hold and declare that the Respondent is liable to refund the said capacity charges of Rs. 21,94,44,381/ - and the interest of Rs. 2,40,06,306/ - along with interest from the date of deduction till the date of refund d) Award costs of these present proceedings against the Respondent in favour of the Petitioner; e) Pass such other further order(s) as the Hon'ble Commission may deem just in the facts of the present case." Submissions and Arguments of the Petitioner (WPCL)
(3.) In its Petition, WPCL submitted as under: 3.1. WPCL is a generating company and has established a 540 MW thermal generating station with a net capacity of about 480 MW. From the said generating station, WPCL has entered into a Power Purchase Agreement dated 4 June, 2010 (hereinafter referred to as "PPA") with RInfra for supply of contracted capacity of 260 MW. 3.2. The balance capacity of the generating station of 220 MW has been tied up by WPCL with its captive consumers in the State of Maharashtra on long -term basis. WPCL has been supplying electricity corresponding to the contracted capacity of 220 MW with effect from March -April, 2012 to its captive consumers, when the open access for the same was available. 3.3. WPCL contended that the long -term agreements having duration of 20 -25 years would have priority in the declaration of availability and scheduling of electricity over the PPA with the Respondent which has duration of 3 years. WPCL submitted that, however, this argument was not accepted by RInfra, which contended that the available capacity was required to be proportionately declared by WPCL to RInfra and the other long -term purchasers having agreements. 3.4. Subsequently, RInfra had filed a Petition being Case No. 8 of 2013 before the Commission seeking adjudication of dispute with WPCL. In the said Petition, the prayer made by RInfra with regard to the proportionate declaration of availability was as given below: "a) Order and direct that the Aggregate Contracted Capacity of 260 MW is required to be reduced proportionately by taking into consideration contracts between the Respondent and third parties which are of duration of more than one year in the event of declared capacity being less than sum total of all contracted capacities." 3.5. By Order dated 15 January, 2014, the Commission disposed of Case No. 8 of 2013 and held that WPCL was bound to declare the available capacity to RInfra and the captive consumers in proportion of their capacity allocation in the total available capacity of the generating station of WPCL. The relevant extract of the Order is given below: "45.4 In accordance with Clause 5.3.2 of the PPA dated 4th June, 2010 the generator has to proportionately reduce its supply to all its procurers whose contract(s) duration exceed one year in case the Declared Capacity of the Plant becomes less than the sum total of all Contracted Capacities. Further, reliance being placed by the Respondent on Clause 7 (x) of the Maharashtra Scheduling and Dispatch Code is also untenable in the present facts of the case as the said Clause does not in any manner mandate that priority to Captive Consumers be given in case the Declared Capacity of the Plant is lower than the sum total of all Contracted Capacities. " (Emphasis Added) 3.6. WPCL submitted that in terms of the principle laid down by the Commission is as follows: (a) WPCL submitted that the declaration of availability from the generating station has to be on proportionate basis to RInfra and to the captive consumers of WPCL. The allocated capacity being 260 MW to RInfra and 220 MW to the captive consumers out of the total net capacity of 480 MW of the generating station, the same proportion of 260:220 is to be maintained for declaration of availability by WPCL, when the available capacity is less than 480 MW. (b) WPCL submitted that the payment of capacity charges can be proportionately reduced only when the availability of the plant is less than the normative availability in terms of the PPA. 3.7. WPCL submitted that the Commission had, by interpreting the provisions of the PPA and the Regulations of the Commission, laid down the principle to be followed for the declaration of available capacity to be made by WPCL and the payment of capacity charges. WPCL added that the actual implementation of the provisions, the actual declaration of availability for each time block, the actual availability achieved on an annual basis based on which the charges are to be recovered etc. are to be worked out by the parties. WPCL submitted that the Commission did not render any finding on the facts and figures involved or the actual amounts which were to be adjusted. 3.8. WPCL submitted that it is entitled to recover the full capacity charges for the 260 MW allocated to RInfra if the Availability is greater than the normative availability of 85%. WPCL added that in the period from April, 2012 to November, 2012, the deduction made by RInfra was not appropriate since the actual Availability was more than the Normative Availability. 3.9. WPCL submitted that there is an error in the calculation of the available capacity by RInfra, which is contrary to the provisions of the PPA and the decision of the Commission in the Order dated 15 January, 2014. 3.10. As per the Petition dated 20 February, 2014, RInfra has been calculating their entitlement from the total declared availability by assuming an arbitrary formula as under: 3.11. The above formula is contrary to the specific provisions of the PPA and the principle outlined by the Commission in the Order dated 15 January, 2014. In the said Order, the Commission had held that the declaration has to be in proportion of the capacity allocated to RInfra and the captive consumers. In terms of the above, the formula for calculation of the entitlement of RInfra from the total declared availability needs to be as under: 3.12. WPCL submitted that the PPA stipulates in Clause 5.3.2 that the ratio for proportionate reduction of available capacity to RInfra should be the ratio of Aggregate Contracted Capacity with RInfra and the sum total of all contracted capacities of the Power Station having duration of contracts in excess of one year. The sum total of all contracted capacities having duration of contracts in excess of one year is 480 MW in the present case, which becomes the denominator figure for calculation of the available capacity to RInfra. 3.13. WPCL submitted that RInfra has made wrongful deductions even for the period subsequent to November, 2012 contrary to the above principle laid down by the Commission from the bills of WPCL. WPCL added that due to such wrongful deductions, it was constrained to invoke the LC to recover the said wrongful deductions and seek directions from the Commission against RInfra. 3.14. WPCL submitted that during the hearing before the Commission on 11 February, 2014 in Case No. 35 of 2014, it was observed that the Commission had outlined the principles after interpreting the PPA and the applicable Regulations. WPCL added that there was no determination or decision on the facts and figures in the Order dated 15 January, 2014. ;