ANDHRA PRADESH ELECTRICITY
REGULATORY COMMISSION
HYDERABAD
Sri
Surinder Pal, Member
Sri. R.Radha Kishen, Member
O. P.
No. 21 of 2004
M/s GMR Technologies & Industries Limited
having its Corporate Office at
6-3-866 / 1 / G2, Greenlands,
Begumpet, Hyderabad.
Represented by its Managing Director. … Petitioner
Vidhyut Soudha,
Khairatabad, Hyderabad
4. Eastern Power Distribution Company of Andhra Pradesh Limited.
P & T Colony, Seethammadhara,
(R-1 is
added being a party to the appeal before Hon’ble ATE)
(R-4 added
in view of Third Transfer Scheme and it being a party
to the
appeal before Hon’ble ATE)
This petition on being remanded from the Hon’ble Appellate Tribunal for Electricity (for short, ‘ATE’) coming up for hearing on 05.05.2007, in the presence of Sri.C.Kodanda Ram, Advocate, for the petitioner and Sri.P.Shiva Rao, Advocate, for the respondents, and having stood over for consideration to this day, the Commission delivered the following:
O R D E R
Originally the petition was filed on 18.05.2004 by the petitioner herein against respondent Nos. 2 and 3. The Commission after carefully considering the said petition disposed of the same by its order dated 17.07.2004.
2. The petitioner challenged the said order of the Commission before the Hon’ble Appellate Tribunal for Electricity (for short, ‘the ATE’) in Appeal No.203 of 2005 and the Hon’ble ATE by its order dated 07.03.2007 allowed the appeal in part with certain directions as mentioned below and dismissed the same with regard to other reliefs:
“In view of the
aforesaid discussion and our observations on the various issues, the appeal is
allowed and the order of the Andhra Pradesh Electricity Regulatory Commission
dated 17.07.2004 in O.P. No. 21 of 2004 is set aside. The matter is remanded to
the Commission with the direction that within eight weeks of the receipt of
this judgment, it will re-determine the ‘demand’ of the appellant in
accordance with the PPA and authorize adjustment of the amount refundable, if
any, against the dues in future”. (emphasis supplied)
3. In view of the directions of the ATE, notices were given not only to petitioner and respondent Nos. 2 and 3, but also to respondent Nos. 1 and 4 as arrayed in the appeal before it.
4. As the matter is remanded to the
Commission with a specific direction to re-determine the ‘demand’ of the
petitioner in accordance with the Power Purchase Agreement (for short, ‘PPA’) and authorize adjustment of the
amount refundable, if any, against the dues in future, as mentioned above, the
scope of present proceedings before the Commission is limited to the extent
envisaged in the directions of the ATE. It is not therefore, necessary to delve
into the rival pleadings of the parties herein in the original proceedings
initiated before the Commission.
5. After receipt of notices, parties entered appearance. On the date of hearing, a petition u/s 86
(1) (f) of the Electricity Act, 2003 (for short, ‘the Act’) was filed by the
petitioner stating that in terms of the PPA and particulars of the energy
consumed by it, it made monthly statement of the consumption vis-à-vis the
demand and the consumption charges payable,
and accordingly submitted an annexure containing such particulars along
with the petition filed on that day.
6. On the said date of hearing, written additional submissions were filed by the respondents,
inter-alia stating that;
a) the respondents have preferred an appeal before the Hon’ble
Supreme Court of India u/s 125 of the Act;
b) section 21 (4) of the A.P. Electricity Reform Act, 1998 (for
short, ‘Reform Act’) mandates that a licensee can purchase power from
generating companies under agreements only with the consent of the Commission
and Section 21 (5) thereof stipulates that any agreement without consent of the
Commission is void. Thus all PPA entered into by APTRANSCO, invariably required
consent of the Commission u/s 21 (4) of the Reform Act;
c) the Commission approved the PPA formats for Non-conventional
Energy (for short, ‘NCE’) projects with captive use in premises and without
captive use in premises;
d) it is respectfully submitted that all PPAs entered into by a
licensee will fall in one of the above categories and no differentiation is
shown in adopting the above clauses for similarly- placed NCE projects;
e) the petitioner sought signing of the PPA with APTRANSCO
during July, 2001 and undertook that it is agreeable to the terms and
conditions of PPA as may be finalised by APTRANSCO and the Commission;
f) there are about 18 NCE projects having captive use in
premises and entered into PPAs with a provision to bill the imported energy and
maximum demand as per actual meter recordings. After obtaining confirmation
from Non-conventional Energy Development Corporation of AP (for short,
‘NEDCAP’), the nodal agency, and the petitioner about captive use in project
premises, APTRANSCO billed the actual recorded MD in lieu of notional MD;
g) the Article 9.2 of the PPA clearly shows that “the
amendments to the Agreement as per the respective orders of APERC from time to
time shall be carried out”. The petitioner is also forgetting the Article 7 of
the PPA, which provides that “any and all incentives / conditions envisaged in
the Articles of this Agreement are subject to modifications from time to time
as per the directions of APERC, Government of Andhra Pradesh and APTRANSCO”;
and
h)
The
actual recorded particulars and billing details of the petitioner’s project are
submitted below:
|
Month |
Units
drawn (Kwh) |
Charges
per unit (Rs) |
Energy
charges (Rs) |
MD
drawn (KVA) |
Charges
per KVA (Rs) |
Demand
charges (Rs) |
Total
charges (Rs) |
|
February 2002 |
1000 |
3.76 |
3760 |
1800 |
170 |
306000 |
611995* |
|
July 2003 |
2000 |
3.60 |
7200 |
1400 |
195 |
273000 |
280470 |
|
November 2003 |
2000 |
3.60 |
7200 |
1110 |
195 |
216450 |
328043* |
|
April 2004 |
1000 |
3.60 |
3600 |
1200 |
195 |
234000 |
469527* |
|
December 2004 |
1000 |
3.50 |
3500 |
1700 |
195 |
331500 |
335135 |
(*) The project drawn power at power factor
at less than 0.9 (i.e., at 0.5, 0.5 and 0.67 during February 2002, November 2003
and April 2004 respectively). As such, Low Power Factor Surcharge as per HT
tariff regulations was charged as in case of all NCE projects.
7. Heard arguments of the parties concerned.
8. The counsel for the petitioner submitted that in view of
Commission’s order dated 17.07.2004 having been set aside and the specific
direction of ATE to it to re-determine the ‘demand’ of the petitioner in
accordance with the PPA, what is now left for consideration by the Commission
is the arithmetic calculation of the amounts withheld. The statement filed this
day by the petitioner together with the petition referred to above, may be
verified and suitable directions may be issued.
9. The counsel for respondents submitted that
a) The respondents have already preferred an appeal against the
order passed by the ATE before the Hon’ble Supreme Court and since the
challenge also includes the issue of remanding the matter, it is requested that
the matter may be adjourned for some more time and orders of the Hon’ble Supreme
Court awaited. By doing so, no prejudice will be caused to the petitioner as
any exercise and disposal of the matter at this stage would go in vain, if the
Supreme Court finds that the remand of the matter by ATE is not correct.
b) Re-determination of the demand and ordering payment of the
amount requires fresh examination of the subject matter in the light of the
observations made by the ATE, but it is not simple arithmetic calculation of
the amount alone as is sought to be projected by the petitioner.
c) The ATE did not comment on the PPA. It is not correct to
state that there is no concluded PPA. Any directions given by the Commission
will form part of the PPA and the same stands amended to that extent. Whatever it might be, re-determination of the
demand of the petitioner has to be done in the light of the letter of the
Commission dated 02.01.2002 by which certain directions relating to the
modifications, which are also applicable to the PPA of the petitioner dated
14.08.2001, were conveyed by the Commission.
10. After conclusion of arguments, the Commission directed the
respondents to file a statement either accepting or disputing the figures,
filed by the petitioner,
item-wise, within one week from
the date of hearing.
11. Instead of accepting or disputing the figures, item-wise, as
filed by the petitioner, on 11.05.2007, ‘a statement showing import bill of M/s
GMR Industries Limited’ from the billing month of August, 2001 to March, 2007
(in tabular form containing 3 pages) was filed on behalf of the
respondents. At the end thereof, it is mentioned that “the excess amount
claimed by the petitioner” is Rs.58,017.
12. As the said statement submitted by the respondents appeared to
be exhaustive, containing more detailed break-up of calculations vis-à-vis the
information furnished by the petitioner on 05.05.2007, a notice was issued to
the petitioner on 16.05.2007 directing it to verify the details submitted by
the respondents and to file a statement, either accepting or disputing the
different figures in the statement submitted on behalf of the respondents on
11.05.2007 as stated above.
13. In pursuance of the notice issued by the Commission as stated
above, a petition was filed on behalf of the petitioner accompanied by a
verified affidavit stating that the petitioner accepts the calculations given
by the respondents and further requesting
the Commission to pass appropriate orders in the interest of justice.
14. The point that arise for consideration of the Commission is :
“what would be the
demand of the petitioner in accordance with the PPA dated 14.08.2001”.
15. In view of the order of the ATE and specific direction give by
it, the limited issue before the Commission is to re-determine the ‘demand’ of
the petitioner in accordance with the PPA dated 14.08.2001 and authorise
adjustment of the amount refundable, if any, against the dues in future. Respondents have not placed any material to
show that stay of further proceedings before the Commission is granted. Therefore, the Commission is of the opinion
that the direction issued by the ATE is required to be complied with.
16. Perusal of the order dated 07.03.2007 of the ATE in Appeal No.
203 of 2005, makes it abundantly clear that the PPA referred to therein, in
paragraph-30 of the said order containing directions to the Commission, is the
PPA dated 14.08.2001 and there is no ambiguity with regard to the same. For
that reason, there is no force in the contention of the counsel for the
respondents that re-determination of demand of the petitioner has to be done in
the light of the letter / proceedings of the Commission dated 02.01.2002 and
the same is rejected.
17. In order to determine the demand of the petitioner in
accordance with the PPA dt. 14.08.2001
as directed by the ATE , firstly the statement submitted by the petitioner on
05.05.2007 is examined by the Commission.
It is found that the said statement does not contain particulars of
demand of the petitioner for various months, as stated in the petition filed by
the petitioner on 05.05.2007. Instead,
the petitioner mentioned the amounts charged by APTRANSCO, computed the amount
which would have been charged as per clause 2.5 of the PPA and arrived at the
differential amount charged in excessive, without however, furnishing the
demand.
18. Even though the respondents did not specifically accept or
dispute the figures furnished by the petitioner as stated above, they filed a
detailed statement showing imported energy billing of the petitioner, as stated
above and it contained calculations of the demand charges as per the PPA as
well as those based on recorded MD.
Additionally, the respondents also submitted details of differential
amount, month-wise, working it out to a
total Rs. 1,69,52,547 (Rupees one crore, sixty nine lakhs, fifty two
thousand, five hundred and forty seven
only).
19. As per the statement submitted on behalf of the respondents on
11.05.2007, the following is the demand of the petitioner for various months:
|
Demand in KVA as per clause
2.5 of the PPA dated 14.08.2001 |
|||
|
Billing Month |
Demand (KVA) |
Billing Month |
Demand (KVA) |
|
Aug-01 |
166.67 |
Jun-04 |
142.47 |
|
Sep-01 |
133.06 |
Jul-04 |
170.83 |
|
Oct-01 |
109.72 |
Aug-04 |
211.02 |
|
Nov-01 |
143.82 |
Sep-04 |
17.47 |
|
Dec-01 |
58.33 |
Oct-04 |
0.00 |
|
Jan-02 |
112.90 |
Nov-04 |
5.38 |
|
Feb-02 |
2.69 |
Dec-04 |
1.39 |
|
Mar-02 |
58.04 |
Jan-05 |
8.06 |
|
Apr-02 |
25.54 |
Feb-05 |
6.72 |
|
May-02 |
118.06 |
Mar-05 |
20.83 |
|
Jun-02 |
43.01 |
Apr-05 |
84.68 |
|
Jul-02 |
112.50 |
May-05 |
2.78 |
|
Aug-02 |
162.63 |
Jun-05 |
10.75 |
|
Sep-02 |
220.43 |
Jul-05 |
94.44 |
|
Oct-02 |
213.89 |
Aug-05 |
245.97 |
|
Nov-02 |
32.26 |
Sep-05 |
131.72 |
|
Dec-02 |
858.33 |
Oct-05 |
45.83 |
|
Jan-03 |
135.75 |
Nov-05 |
116.94 |
|
Feb-03 |
8.06 |
Dec-05 |
25.00 |
|
Mar-03 |
0.00 |
Jan-06 |
32.26 |
|
Apr-03 |
51.08 |
Feb-06 |
0.00 |
|
May-03 |
16.67 |
Mar-06 |
8.93 |
|
Jun-03 |
63.17 |
Apr-06 |
0.00 |
|
Jul-03 |
2.78 |
May-06 |
0.00 |
|
Aug-03 |
21.51 |
Jun-06 |
1.34 |
|
Sep-03 |
255.38 |
Jul-06 |
1.39 |
|
Oct-03 |
20.83 |
Aug-06 |
465.05 |
|
Nov-03 |
4.03 |
Sep-06 |
240.59 |
|
Dec-03 |
0.00 |
Oct-06 |
252.78 |
|
Jan-04 |
22.85 |
Nov-06 |
18.82 |
|
Feb-04 |
53.76 |
Dec-06 |
19.44 |
|
Mar-04 |
8.62 |
Jan-07 |
4.03 |
|
Apr-04 |
2.69 |
Feb-07 |
1.34 |
|
May-04 |
11.11 |
Mar-07 |
0.00 |
20. By a petition filed on 21.05.2007, which was accompanied by a
verified affidavit as stated supra, the petitioner accepted the calculations
given by the respondents.
21. Accordingly, the demand of the petitioner is re-determined as
indicated in the paragraph 19 above for different months indicated
therein. With the result, the
petition is allowed with a direction to
the respondents to adjust the amount refundable to the petitioner against dues
in future, based on the demand as determined in paragraph 19 above, in
accordance with the directions of the Hon’ble ATE in Appeal No.203 of 2005
dated 07.03.2007.
The order is corrected and signed on this 25th day of May, 2007.
|
Sd/- |
Sd/- |
Sd/- |
|
(R.RADHA KISHEN) |
(SURINDER PAL) |
(K.SWAMINATHAN) |
|
MEMBER |
MEMBER |
CHAIRMAN |