- (1.) M/s Global Energy Pvt. Ltd. (GEPL), a Trading Licensee, has filed a Petition on 30 July, 2014 seeking directions regarding wrongful application of Tariff and charges by Tata Power Co. Ltd. (TPC), as Distribution Licensee, on its partial Open Access consumers. The Petition cites Sections 86 (1) (f), (k) and (i) read with Sections 142, 146 and 149 of the Electricity Act (EA), 2003.
(2.) The Petitioner's prayers are as follows: (a) quash/ set aside the letters dated 07.05.2013, 28.06.2013, 24.07.2013 and 21.01.2014 to the extent the same pertain to charging of temporary charges and penal demand charges from the sanctioned reduced contract demand of a partial Open Access consumer (Respondent No. 2); (b) hold and declare that the Respondent No. 1 cannot charge temporary Tariff and penal demand charges from consumers, who opt for a part load Open Access, for the quantum of reduced contract demand in the event of a partial Open Access; (c) hold and declare that the Respondent No. 1 has to charge Tariff as determined by this Hon'ble Commission for supply of electricity to consumers for the quantum of reduced contract demand in the event of a partial load Open Access; (d) hold and declare that the Respondent No. 1 has to grant Open Access, for the full or partial load, strictly in accordance with the provisions of the Electricity Act, 2003 and the MERC (Distribution Open Access) Regulations, 2005; (e) hold and declare that the Respondent No. 1 has abused its dominant position in charging temporary Tariff and penal demand charges from consumers, who opt for a part load Open Access, for the quantum of reduced contract demand; (f) direct the Respondent No. 1 to refund the amount of Rs. 92,40,848 along with interest recovered under temporary charges and penal demand charges in the present case for the quantum of reduced contract demand of the Respondent No. 2; (g) hold and declare that the Petitioner has suffered a loss/ damages of Rs 15 lacs on account of loss of business due to the actions of the Respondent No. 1 in charging temporary Tariff and penal demand charges from consumers, who opt for a part load Open Access, for the quantum of reduced contract demand in the event of a partial Open Access; (h) hold and declare that the actions of the Respondent No. 1 in charging temporary Tariff and penal demand charges from consumers, who opt for a part load Open Access, for the quantum of reduced contract demand in the event of a partial Open Access, have violated Sections 142/ 146 of the Electricity Act, 2003;
(3.) The facts as stated in the Petition are as under: (1) GEPL is engaged in the business of trading of electricity. M/s Tata Communications Ltd. (TCL) is a consumer of electricity located in the distribution area of TPC. TCL has entered into an arrangement for purchase of electricity under Open Access from GEPL in respect of its two establishments located in Mumbai at the Bandra -Kurla Complex BKC), Mumbai for 1.5 MW and at Andheri for 2.5 MW from April, 2013 to March, 2014. (2) Accordingly, GEPL applied on 1 April, 2013 and 28 March, 2013 for grant of Open Access for both establishments. The Maharashtra State Electricity Distribution Co. Ltd. (MSEDCL) was mentioned as the source generator since a substantial portion of the Petitioner's energy was banked with MSEDCL and it intended to supply the same to these two establishments. However, the application was never processed by TPC nor was a letter of rejection issued. (3) For availing Open Access, Regulation 5.1 of the MERC (Distribution Open Access (DOA) Regulations, 2005 (DOAR, 2005) requires that an Open Access Connection and Use of Distribution System Agreement has to be entered into between the Distribution Licensee, consumer availing Open Access and supplier/trader. However, the mandated Agreement was not entered into. Instead, through e -mail dated 7 May, 2013, TPC insisted that TCL execute a document termed as 'Open Access Terms and Conditions (T and C) Agreement'. This action of TPC was contrary to the Regulations. (4) Being left with no option considering the conditions imposed by TPC, the T&C Agreement was entered into between TPC and TCL. Subsequently, TPC confirmed the completion of the Open Access application process. (5) On 25 June, 2013, GEPL, being a trader and supplier of energy in this partial Open Access transaction, wrote to TPC on behalf of TCL for a No Objection Certificate (NOC) in respect of the grant of partial Open Access permission. Vide letter dated 28 June, 2013, TPC informed TCL that it was willing to grant partial Open Access. TPC also intimated that the Tariff for such Open Access would have to be mutually agreed upon in principle for the load continuing with the TPC. (6) On 11 July, 2013, GEPL, on behalf of TCL, wrote to TPC stating that over 100 days had elapsed since the application for Open Access was made and that delay in issuance of NOC was causing a financial loss to TCL. Moreover, due to the delay by TPC in processing the application, GEPL's Letter of Intent (LoI) with the generator had lapsed, and a fresh LoI had to be submitted to TPC. (7) On 24 July, 2013, TPC wrote to TCL stipulating the charges applicable for the load continuing to be maintained with TPC. They comprised Contract Demand Charges, Energy Charges, Wheeling and Transmission Charges and Wheeling and Transmission Losses, and were not in consonance with the Commission's Tariff Orders. TPC even proposed to levy Cross Subsidy Surcharge (CSS) on the energy supplied by it to TCL. (8) In view of TPC's stand on partial Open Access, TCL felt that it was not feasible to undertake Open Access for its Andheri facility. It took steps to secure a connection with a lower Contract Demand for its BKC facility which would enable it to avail Open Access while paying lower Temporary Tariff and penal Demand Charges on the Contract Demand remaining with TPC. (9) Thereafter, on 14 August, 2013, TCL issued a fresh LoI to GEPL for procurement of energy under Open Access for its BKC facility, and a fresh application was submitted to TPC on 19 August, 2013 for availing partial Open Access for 1.5 MW for that facility. TPC granted partial Open Access to TCL on 9 October, 2013 after a substantial delay. The delay was also the result of the imposition of conditions contrary to the Commission's dispensation. (10) Vide letter dated 16 January, 2014, TCL protested about the Tariff levied by TPC on its remaining Contract Demand, which was in contravention to the provisions of the EA, 2003. TPC responded on 21 January, 2014 that it had granted partial Open Access as per the prevailing regulatory framework. Once TCL availed Open Access, only the Wheeling Charges determined by the Commission were applicable. The charges for supply of electricity by TPC, for even a part load, would be as mutually agreed between TPC and TCL. TPC has also been applying charges for the reduced Contract Demand which have not been approved by the Commission. Vide letter dated 30 January, 2014, GEPL, being the trader and supplier, raised concerns with TPC regarding these illegal actions. (11) On 22 April, 2014, TPC forwarded a new Open Access T&C Agreement for Wheeling of Firm Power for the current year. That Agreement is in violation of Regulation 5.1 of Distribution Open Access Regulations, 2005 under which TPC is required to sign a Connection and Use of Distribution System Agreement as set out at Annexure -II of the Regulations. TCL is entitled to avail of partial Open Access under Regulation 4.2, and maintain part of its Contract Demand with its Distribution Licensee, i.e. TPC. , (12) Thus, TPC has abused its dominant position. TPC is not entitled to levy any charges, Tariffs, CSS, temporary charges, arbitrary penal Demand Charges, etc. from a consumer which maintains a Contract Demand with it other than those determined by the Commission in its Tariff Orders. TPC's actions fall foul of Sections 142 and 146 of the EA, 2003, and TPC is liable to refund any extra amounts recovered from TCL along with interest. (13) By deliberately delaying Open Access, TPC has violated Regulations 3.1, 4.2.2, 4.3.1 and 4.4.1 of the Distribution Open Access Regulations, 2005 and Regulation 4.1 of the Commission's Standards of Performance (SoP) Regulations, 2005. There has been an inordinate delay in providing the NOC to GEPL so as to enable partial Open Access to TCL. The levy of arbitrary charges has caused a loss of Rs. 92,95,299 to GEPL and TCL. (14) TPC has levied a hefty charge on TCL for the energy supplied by it in order to make the Open Access transaction financially unviable. The difference in charges specified by the Commission and those levied by TPC is set out below: As per Tariff TPC's Particulars Orders Charges Demand Charges ­ for partial Contract Demand retained 200 556 with TPC over and above Open Access quantum (Rs/KVA) Penal Demand Charges where consumer exceeds 300 695 Contract Demand retained with Dist. Licensee (Rs/KVA) Energy Charges - (Rs/kWh) within Contract Demand 6.20 11.05 retained with Dist. Licensee Energy Charges for consumption over and above 11.05 11.05 Contract Demand with Dist. Licensee (Rs/kWh) (15) Since TPC's actions have prevented GEPL from contracting power with consumers in its distribution area since they were thereby dissuaded from availing of Open Access, GEPL suffered loss of business and also entitled to damages of Rs.15, 33,000/ -. (16) TPC has also violated Section 43 of the EA, 2003 by not providing the NOC for partial Open Access in time and charging a suo -motu Tariff which is in gross contravention of the law. ;