- (1.) THE petitioner has made this application under Regulation 35 of the Central Electricity Regulatory Commission (Open Access in inter-State transmission) Regulations, 2004 (hereinafter referred to as "the open access regulations") seeking direction to the respondent to refund an amount of Rs. 50,91,511/= recovered by the respondent as short-term open access (STOA) charges for the months of April to July 2005, allegedly in excess of the charges due.
(2.) Briefly, the case of the petitioner is as under: (a) PSEB agreed to purchase off-peak power for 18 hours from Department of Power, Govt. of Tripura through the petitioner, who applied to the respondent for grant of STOA on 24.3.2005. The relevant clauses of STOA application are reproduced as under: JUDGEMENT_279_TLET0_20070.htm (b) The petitioner paid a sum of Rs. 55,25,046/= towards STOA charges in advance for 31 days as per the reservation procedure laid down by the respondent. (c) In response to the petitioner's application dated 24.3.2005, the respondent granted STOA on 30.3.2005 for April 2005 with a note that the petitioner could apply afresh for capacity reservation for May 2005 onwards as per the revised procedure laid down by the respondent for reservation of STOA transactions. (d) On 21.2.2005, the Commission issued the amended open access regulations whereby, STOA charges were to be applied on block basis with effect from 1.4.2005. The relevant extract of the amended open access regulations is as under: Regulation-16(iii) Transmission charges payable by a short-term customer in case of un-congested transmission corridor shall be levied as under, namely: (a) up to 6 hours in a day in one block: 1/4th of ST_RATE (b) more than 6 hours and up to 12 hours in a day in one block: 1/2 of ST_RATE (c) more than 12 hours and up to 24 hours in a day in one block: equal to ST_RATE ST_RATE is the rate for short-term customer in Rs/MW/day (e) As STOA charges for the month of April 2005 had already been paid by the petitioner at the time of making of the application, the respondent issued schedule of STOA payments for the period May 2005 to July 2005 initially on 25.4.2005, which was revised on 1.9.2005. In the revised payment schedule, the respondent considered 0000-1700 hours as 24 hours (being more than 12 hours) i.e. one day rate and 2300-2400 hours (up to 0600 hours) at 1/4th of the day's rate. STOA charges computed by the respondent on the above basis worked out to 30 hours in a day against 18 hours use of transmission capacity by the petitioner. (f) As per the agreement between the petitioner and the buyer of electricity, PSEB, STOA charges were reimbursable by the buyer. As PSEB protested the calculation of revised STOA charges by the respondent, the petitioner took up the matter with the respondent on 27.9.2005, who turned down the petitioner's request vide its letter dated 7.10.2005. (g) Thereupon the petitioner approached Member-Secretary, NREB/NRPC on 8.11.2005 under Regulation 35 of the open access regulations for dispute resolution. Member-Secretary, NREB/NRPC discussed the issue with the parties on 6.1.2006 and 7.4.2006 and issued an award on 17.7.2006 by concluding that the respondent had wrongly overcharged and should refund the excess charged amount to the petitioner. Extract of the conclusion is given below: 9. ...I conclude that the revised short term transmission charges determined by NRLDC in September, 2005 in the instant case are not correct and they are on the higher side. The rate of shorter term transmission charges for the period of 0000-1700 hrs being full day rate already covers the entire 24 hrs duration, which includes, 2300-2400 hrs period as well, particularly in view of requirement of same transmission capacity during the two periods. The procedure lapse of not mentioning 'Nil' requisition during the intervening period 1700-2300 hrs in the application is minor in nature and condoned. The short term transmission charges based on this principle, work out the same as those determined by NRLDC originally on 30.3.2005 for 35 MW transaction for the month of April, 2005 and on 25th April, 2005 for transaction of 50 MW for the period May to July, 2005. Therefore, the entire amount charged over and above the original bill need to be refunded by NRLDC to PTC. (h) The respondent, however, disagreed with the award made by Member-Secretary, NREB/NRPC and contended that as per clause 35 of the open access regulations, the matter must be referred to the Commission, as unresolved. (i) NRPC vide its letter dated 1.8.2006 informed the respondent that as per Regulation 35 of the open access regulations, any party not satisfied with the decision of Member-Secretary, could refer the matter to the Commission for a final decision. The respondent, accordingly, took up the matter with the Commission vide its letter dated 9.8.2006. The petitioner has filed the instant petition against the above background.
(3.) THE petitioner contends that the transaction between 0000-1700 hours and 2300-2400 hours was between the same parties and since STOA charges for 0000-1700 hours are for the complete day, STOA charges for 2300-2400 hours get automatically paid. It is urged that any additional charging is tantamount to levy of double charges and in this case these are 1.25 times the short-term day rate. According to the petitioner, the computation made by the respondent makes electricity costlier and is against National Electricity Policy, which states that open access in transmission should lead to availability of cheaper power. THE petitioner further contends that its omission to mention 'NIL' requisition during intervening period 1700-2300 hours, should not lead to such a heavy penalty. THE petitioner has suggested that while the revised STOA charges effective from 1.4.2005 may remain the same as earlier, but in no case these should exceed the charges calculated based on the provisions applicable prior to 1.4.2005 and accordingly has sought refund of the excess amount of Rs. 50,91,511/= together with interest.;