- (1.) Three Generators, namely, Indiabulls Power Limited (hereinafter referred to as "Indiabulls Power"), Adani Power Maharashtra Limited (hereinafter referred to as "Adani Power") and JSW Energy Limited (hereinafter referred to as "JSW Energy"), which had executed Power Purchase Agreements (PPA) under the Case 1 Route of the "Guidelines for Determination of Tariff by Bidding Process for Procurement of Power by Distribution Licensees" (hereinafter referred to as "Competitive Bidding Guidelines") with Maharashtra State Electricity Distribution Co. Ltd. (MSEDCL) in the year 2007 to 2009, have approached the Commission for compensation on account of shortfall in supply of domestic coal and increase in price of imported coal.
(2.) The three Petitions being considered before the Commission in this regard are as shown below: Table 1: Overview of Petitions filed before the Commission Plant Size and Case No. Petitioner Issue location Shortfall in supply of coal supplied by 1200 MW 154 of 2013 Indiabulls Power Coal India Limited (CIL) and quality of (Amravati) coal leading to under -recovery 3 PPAs (1200 MW, Shortfall in supply of coal supplied by 189 of 2013 Adani Power 440 MW and 125 CIL and quality of coal leading to MW) MW (Tiroda) under -recovery Increase in price of imported coal 118 of 2013 JSW Energy 300 MW (Ratnagiri) compared to that considered at time of bid
(3.) Summary of the three matters is given below: 3.1. Indiabulls Power filed the Petition in Case No. 154 of 2013 for compensation in Tariff on account of increase in fuel and other incidental costs. 3.2. Pursuant to the Case 1 Stage II bidding process, Indiabulls Power executed two PPAs for long term (25 years) supply of aggregate 1200 MW of power to MSEDCL. The PPAs were signed on 22 April, 2010 and 5 June, 2010 for supply of 450 MW and 750 MW respectively. 3.3. Indiabulls Power has sought the revision in Tariff on account of shortfall in coal due to change in quality of coal from that assured under the Letter of Assurance (LoA) by CIL and the decision of Cabinet Committee on Economic Affairs (CCEA) taken on 21 June, 2013. Standing Linkage Committee ("SLC") on 12 November, 2008, approved grant of 3.4. linkage to the generating station of Indiabulls Power from Western Coalfields Ltd. ("WCL") and South Eastern Coalfields Ltd. ("SECL"). Indiabulls Power obtained LoAs from SECL and WCL dated 6 June, 2009 and 12/13 June, 2009 respectively. The details of LoAs are given below: Table 2: Details of LoA ­ Indiabulls Power LoA Quantity ­ CIL Subsidiary issuing Sl. No. LoA Date Grade of Coal Million Tons per LoA Annum (MTPA) 1 Western Coalfields Ltd. 12/13 June, 2009 E 2.346 South Eastern Coalfields 2 6 June, 2009 F 2.747 Ltd. Total 5.093 3.4.1. Pursuant to the award of LoAs, Indiabulls Power participated in the Case 1 Stage -II bidding process. However, due to shortage of coal at WCL, LoA quantity from WCL was subsequently transferred to SECL. Indiabulls Power, thereafter, executed Fuel Supply Agreement (FSA) with SECL on 22 December, 2012 for 4.97 MTPA corresponding to the PPA capacity as against the entire LoA capacity, being 5.093 MTPA (2.346 + 2.747 MTPA). Instead of increasing the coal quantity to compensate for supply of 'F' grade coal 3.4.2. against the original WCL linkage of 'E' grade coal, SECL has executed FSA for supply of 'F' Grade coal for the same quantity. Therefore, Indiabulls Power submitted that there is coal shortage due to supply of lower grade coal, and therefore, the coal supply is inadequate to achieve normative availability. 3.4.3. Indiabulls Power has claimed that there has been a substantial increase in the fuel cost due to shortfall in supply of quantity and change in grade of coal by the State owned coal supplier, i.e., Coal India Limited and its subsidiaries. Indiabulls Power has claimed that the Respondent has failed and neglected to accept its formal request vide letter dated 21 September, 2013 for allowing compensation in Tariff for addressing the issue of incremental fuel cost. 3.5. Adani Power has filed the Petition under Section 86 of the Electricity Act, 2003 for the appropriate compensation in Tariff under the PPAs dated 31 March, 2010, 9 August, 2010 and 16 February, 2013 executed with MSEDCL. 3.5.1. Pursuant to the Case 1 Stage I and Stage II bid processes conducted by MSEDCL, Adani Power has signed PPAs for supply of 3085 MW of capacity with MSEDCL, the details of which are as follows: Table 3: List of PPAs Date of PPAs Contracted Capacity (in MW) 8 September, 2008 1320 31 March, 2010 1200 9 August, 2010 125 16 February, 2013 440 Total 3085 3.5.2. Adani Power submitted that it is seeking adjustment in Tariff quoted in the PPAs dated 31 March, 2010, 9 August, 2010 and 16 February, 2013 under Article 10 of the PPA pertaining to "Change in Law". 3.5.3. Adani Power has submitted that decision of CCEA dated 21 June, 2013, amendment to New Coal Distribution Policy, 2007 (hereinafter referred to as "NCDP, 2007") dated 26 July, 2013 and Ministry of Power's (MoP) advice dated 31 July, 2013 qualify to be "Change in Law" as per Article 10 of the PPA's signed with MSEDCL. 3.5.4. Adani Power has filed the Petition (i) to seek approval of the Commission of the impact of the Change in Law which has affected the Petitioner during the performance of its obligations under the PPAs and is also likely to increase the cost of generation from units which are to be commissioned shortly; and (ii) to allow the Petitioner to restore its original economic position as envisaged under the PPAs by recovering the amount of impact suffered on account of the Change in Law from the Respondent. 3.6. JSW Energy filed the Petition in Case No. 118 of 2013 under Section 61, 86 (1) (b) and other Applicable provisions of Electricity Act, 2003. 3.6.1. JSW Energy submitted that pursuant to the Case 1 Stage -I bidding process, it entered into a PPA with MSEDCL to supply 300 MW from its Ratnagiri power plant. Prior to the bid, JSW Energy had entered into a Fuel Supply Agreement (FSA) with M/s Sungai Belati Coal (SBC). According to the FSA, coal was to be supplied at the base price of $35 per ton, which was at a discount to the prevailing market price of $45 -55 per ton. However, subsequently, the mining licence of SBC was revoked. JSW Energy contended that revocation of licence of SBC was a 'Force Majeure' event under the PPA and suitable compensation should be provided to JSW Energy. JSW Energy approached the Commission in Case No. 9 of 2011 to substantiate its claim for Force Majeure. However, the Commission vide its Order dated 16 November, 2011 in Case No. 9 of 2011 ruled that revocation of licence of SBC was not a Force Majeure event. 3.6.2. Thereafter, JSW Energy filed an Appeal (Appeal No. 20 of 2012) against the Commission's Order before the Hon'ble Appellate Tribunal for Electricity (ATE). The Hon'ble ATE in its Judgment in the said Appeal has remanded the matter to the Commission for examining certain issues by Distribution Licensee regarding the knowledge of the Appellant on the on -going litigation and amendment to the Coal Supply Agreement and the facts thereon. The said matter on the Judgment is being heard under a separate case. 3.6.3. However, JSW Energy has approached the Commission under Case No. 118 of 2013 praying for a suitable increase in Tariff to offset the increase in cost of importing coal claiming that factors underlying its bid have been fundamentally altered with, inter alia, cancellation of SBC mining licence, the promulgation of Indonesian Regulations and the significant increase in imported coal prices. ;