O R D E R

2. In this I.A. filed under Section 94(2) of the Electricity Act, 2003, it is prayed that pending disposal of the main petition in O.P.No.4 of 2007, the Commission may be pleased to pass interim orders directing the respondents to pay to the petitioner:-

(a) Fixed costs and amount towards income-tax and others on the basis of the aggregate amount of Rs.1,541-51 crs. provided for by this Commission with effect from 01.04.2007 in its common Tariff Order dated 20.03.2007 for 2007-08 passed in O.P.Nos.33 of 2006 to 36 of 2006 in respect of all the existing stations of the petitioner in operation as on date; and

(b) Fixed costs on the basis of Rs.322 crs. per annum on a proportionate basis for the period of operation during 2007-08 in respect of RTPP-II with effect from the month in which the said station commences operation; and

(c) Variable costs for the energy delivered by the petitioner to the respondents from 01.04.2007 at the various rates set out in Table-8 of the Order dated 20.03.2007 passed by the Commission duly adjusted for actual gross calorific value of the fuel and the actual landed costs of fuel for the respective months; and

(d) Such amount at the rate of Rs.1.63 per unit during non-monsoon and Re.0.64 per unit during monsoon for the energy delivered by the petitioner from 01.04.2007 to the respondents from the Srisailam Left Bank Power House (for short, ‘SLBPH)); and

(e) Additional amount on the basis of Rs.100 crs for 2007-08 provided on an adhoc basis, on account, pending disposal of O.P.No.27 of 2006 and O.P.No.4 of 2007; and / or

(f) Such other order as the Commission may consider fit and expedient in the facts and circumstances of the case.

3. In brief, the averments made in the I.A. are as follows:

(a) The petitioner filed an application for the determination of tariff for supply of electricity to the respondents for the financial years 2007-08 and 2008-09 u/s 62 of the Electricity Act, 2003, vide O.P.No.4 of 2007.

(b) In the common Tariff Order dated 20.03.2007 passed by the Commission in O.P.Nos.33 to 36 of 2006 in respect of the Annual Revenue Requirements and the Retail Supply Tariffs of the respondents for the year 2007-08, at paragraph 244 and Table 14, the Commission provided Rs.1503.69 crs as fixed cost and Rs.37.82 crs towards income-tax and others for all the stations of petitioner, excluding RTPP-II and without considering SLBPH. The Commission also provided Rs.322 crs as the annual fixed costs for RTPP-II expecting the commencement of operation from April, 2007.

(c) As per the Tariff Order dated 20.03.2007, the Commission has considered the variable costs of various stations. The said variable costs are subject to fuel cost adjustment for actual gross calorific value of the fuel and the actual landed costs of fuel for the respective months.

(d) The Commission has made an adhoc provision of Rs.100 crs. keeping in view the likely financial impact of the order arising out of the petitions in O.P.Nos.27 of 2006 and 4 of 2007 filed by the petitioner for determination of tariff which are pending.

(e) In respect of the energy delivered from the SLBPH, the Commission has considered and adopted a rate of Rs.1.63 per unit during non-monsoon and Re.0.64 during monsoon.

(f) As the amounts stated above and prayed for in the Application herein have been allowed as a pass-through to the consumers and are being recovered by the respondents through the respondents’ retail supply tariff, it is only just and equitable that the petitioner be allowed to claim the said amounts from the respondents till the disposal of the pending tariff determination petitions. In similar circumstances, for the year 2006-07, the Commission was pleased to pass Order dated 26.09.2006 in I.A.No.10 of 2006 in O.P.No.27 of 2006 allowing the petition and directing the respondents therein to pay to the petitioner as per the amounts admitted in the retail supply tariff order for that year.

(g) If no interim order for the payment of such minimum amount is passed, the petitioner will not have a legal basis for claiming the amount from the respondents and will suffer irreparable harm and injury. On the other hand, the respondents will not suffer any prejudice whatsoever as the amounts claimed in this application are already being recovered by the respondents from the consumers through the retail supply tariff. The balance of convenience is clearly in favour of the petitioner for the grant of interim order as prayed for.

4. On behalf of all the respondents, a common counter is filed on 23.08.2007 stating that:--

(a) The I.A. is not maintainable at law and facts on record as the findings of the Commission in the Tariff Order dated 20.03.2007 for bulk purchases of energy are indicative and instructive, but not actual figures of liability to the petitioner.

(b) The claim of the petitioner that the fixed charges of the petitioner should be considered as Rs.1541.61 crs for making payments of monthly fixed charges is untenable. The income-tax amount as provided in the Tariff Order shall be paid to the petitioner at the end of year after submission of relevant documents duly certified by Chartered Accountants including assessment orders of the concerned to the petitioners. The fixed charges pertaining to RTPP Stage-2 of Rs.322 crs shall be paid proportionately after commercial date of operation of the project during the year 2007-08.

(c) The respondents request the Commission to allow them to pay variable costs either as per the Table-8 of the Tariff Order FY 2007-08 or as per the actual variable costs, whichever is less.

(d) Release of Rs.100 crs keeping in view the likely financial impact of the order arising out of petitions in O.P.Nos.27 of 2006 and 4 of 2007 on adhoc basis to the petitioner by the respondents would be contrary to Tariff Order of FY 2007-08 and therefore it cannot be accepted. The claim of the petitioner is result of misconception of the Tariff Order. The said amount mentioned in Tariff Order is only likely financial impact of the order i.e., after the outcome of the petition filed for determination of generation tariff. Therefore, the petitioner would be entitled for the said amount only after the decision of O.P.No.27 of 2006 as may be given therein.

(e) In respect of the energy delivered from SLBPH, the Commission indicated the energy charges @ Rs.1.63 per unit during non-monsoon period. The said figures indicated in the tariff are for the purposes of estimation of power purchase cost during the year 2007-08. As per the methodology, during the non-monsoon period, the Commission directed the respondents to consider payment at the marginal variable cost of energy from Thermal Stations and during monsoon period the energy from SLBPH shall be paid by APTRANSCO (the predecessor-in-interest of the respondents) at the lowest variable cost of purchases from all the Thermal Power Stations. Therefore, the respondents request the Commission to consider the same methodology for payment of energy charges for SLBPH. As per the methodology approved in the Tariff Order FY 2004-05 the respondents had paid an amount of Rs.65.64 crs. to the petitioner and proposals were sent to the Commission to release the payment of Rs.57.30 crs. for third and fourth quarters of FY 2006-07.

(f) The contention that all the amounts claimed by the petitioner herein have been passed on to the end consumers through retail supply tariff, is factually not correct. The amount of Rs.100 crs. provided in the Tariff Order which is subject to the outcome of the O.P.No.27 of 2006 will not be considered for payment for the simple reason that the fixed charges of the petitioner have been fixed at Rs.1503.69 crs. and the same is being paid accordingly.

(g) It is incorrect to state that, if no interim order is passed, the petitioner will not have legal basis to claim of admitted / decided amounts. The petitioner is not entitled for the interim orders as claimed. The monthly payments are being made considering the fixed charges of the petitioner at Rs.1503.69 crs, which the petitioner is entitled to as per the Tariff Order. The petitioner has failed to make out any case for grant of interim orders as the petitioner had made baseless claims in O.P.No.4 of 2007.

(h) Therefore, it is prayed that the I.A.No.11 of 2007 in O.P.No.4 of 2007 may be dismissed with costs.

5. On the date of hearing, the counsel for the petitioner reiterated the various averments mentioned in the Application filed u/s 94(2) of the Act and requested that respondents may be directed to pay the different amounts mentioned in detail in paragraph-2 supra stating that all the said amounts have been allowed by the Commission as pass-through to the consumers and are being recovered by the respondents through retail supply tariffs and therefore, the petitioner is entitled for payment of said amounts. He further stated that the common counter on behalf of all the respondents proceeds on mutually contradictory stands. Whatever it may be, as the respondents will not suffer any prejudice whatsoever if the amounts claimed by the petitioner are paid to it, and it is just and equitable that the Commission passes interim order directing the respondents to pay the same to the petitioner.

6. On behalf of the respondents, it is submitted that amount towards income tax as provided in the Tariff Order is liable to be paid to the petitioner at the end of the year. Similarly, fixed charges pertaining to RTPP-II can be paid only after commercial operation date (for short, ‘COD’) of the project. Like-wise, variable charges shown in the Tariff Order under Table-8 are only indicative for the purpose of estimation of power purchase costs from the petitioner. Therefore, the petitioner is not entitled for payment of said costs pending disposal of the main petition. With regard to payment of Rs.100 crs. provided in the Tariff Order, it is subject to outcome of the decision in O.P.No.27 of 2006 and the said amount cannot be paid even on adhoc basis, as contended by the petitioner. It is not correct to state that amounts claimed by the petitioner are pass-through to the end consumers through retail supply tariff and accordingly the petitioner is not entitled for any interim order. Therefore, it is prayed that the I.A. may be dismissed.

7. The point that arise for consideration is “whether the petitioner is entitled for interim relief as prayed for”.

8. The Commission carefully considered the pleadings and the oral submissions of the parties and examined the reliefs prayed for in the light of the pleadings/submissions. It was observed therefrom that :

i) Compliance of Tariff Order FY 2007-08 with regard to payments to the petitioner is partial to the extent that: (a) payment of advance income-tax and (b) payments relating to the adhoc provision of Rs.100 crs. made in the Tariff Order pending disposal of O.P.No.27 of 2006 remain to be made;

ii) Payment of variable charges is in line with the Commission’s Order dated 26.09.2006 for thermal stations and as per the methodology approved in Tariff Order FY 2004-05 for energy delivered by SSLBH.

iii) However, for further detailed examination of the issues involved, clarifications were required from the respondents on the following points:

a) Monthly fixed cost so far paid by the respondents to the petitioner during 2007-08, i.e. from April 2007 to August 2007.

b) Any advance tax claimed by the petitioner and paid by the respondents.

c) Station-wise rate of variable charge claimed by and paid to the petitioner during the said months of 2007-08.

d) Month-wise amounts claimed by and paid to the petitioner by the respondents for energy delivered from SSLBPH and rates / basis adopted for such payments during the said months.

9. Accordingly, notice was issued to the petitioner and respondents on 24^th September, 2007, requiring the respondents to provide clarifications on the above-said aspects. In response thereto, the respondents submitted the clarifications on 27.09.2007. The petitioner also provided some information on the above points in response to the said notice. The two sets of clarifications/ information revealed that:

i) The petitioner claimed monthly fixed cost @ Rs.125.307 crs (i.e., one- twelveth of fixed cost of Rs. 1503.69 crs. per annum as provided in Tariff Order 2007-08 excluding taxes and incentives) during the period from April 2007 to August 2007 and the respondents have admitted the same amount every month. The petitioner has stated that Rs.14.60 crs paid towards advance tax during FY 2007-08 have not yet been claimed from the respondents.

ii) No component of the provision of Rs.100 crs. made in the Tariff Order 2007-08 has been claimed by the petitioner since there is no mention of this amount either in the claim of the petitioner or in the statements of respondents. Same is the case for Rs.322 crs. towards fixed cost of RTPP-II.

iii) The variable costs have been claimed by the petitioner as per Table-8 of the Tariff Order duly adjusted for actual gross calorific values (GCV) of the fuel and the same have been admitted by the respondents.

iv) The month-wise amounts claimed by the petitioner for energy delivered from SSLBPH (based on paragraphs 475 and 476 of Tariff Order 2004-05 are submitted by the respondents on quarterly basis for the approval of the Commission. It is seen that the very same amount as claimed by the petitioner figures in the proposal submitted by the respondents to the Commission for approval for the 1^st quarter of 2007-08.

10. It is relevant to state here that the information submitted by the petitioner as well as the respondents is almost identical. Considering all the facts and circumstances therefore, and since the prayer of the petitioner to the Commission is to pass interim orders pending disposal of the tariff petition, the Commission considers it to be appropriate that interim relief is granted to the petitioner pending disposal of the petition as the claims made by the petitioner are almost identical and acceptable to the respondents.

11. In view of the foregoing discussion and after careful examination of the material facts submitted by the petitioner and the respondents, the Commission issues the following directions pending disposal and subject to the final outcome of O.P.No.4 of 2007:

The respondents shall pay to the petitioner with effect from 01.04.2007 :

i) Fixed charges for petitioner’s generating stations as per Tariff Order, dated 20^th March, 2007;

ii) Fixed charges for RTPP-II on proportionate basis depending upon the COD;

iii) Payment of Advance Income-tax on proof of payment;

iv) Variable charges for thermal stations as per Table-8 of the Tariff Order dated 20^th March, 2007, duly adjusted for the GCV of fuel;

v) Incentive on annual basis;

vi) ‘On-account’ payments in regard to the provision of Rs.100 crs on proportionate basis, subject to adjustments as may be required, if any, on disposal of O.P.No.4 of 2007; and

vii) Payment for energy delivered from SSLBPH in line with paragraphs 475 and 476 of Tariff Order 2004-05 subject to year-end adjustment.

All the above payments excepting Advance Income-tax and incentive shall be made on monthly basis, the payments due for and up to the end of the month preceding the date of issue of this Order to be made within 30 days of the issue of the order.

The order is corrected and signed on this 16^th day of October, 2007.

Sd/-	Sd/-	Sd/-
(R.RADHA KISHEN)	(SURINDER PAL)	(K.SWAMINATHAN)
MEMBER	MEMBER	CHAIRMAN

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