Appeal No. 120 of 2016 & IA No. 272 of 2016. Case: Kamachi Sponge & Power Corporation Ltd. Vs Tamil Nadu Generation and Distribution Corporation Ltd.. APTEL (Appellate Tribunal for Electricity)
| Case Number | Appeal No. 120 of 2016 & IA No. 272 of 2016 |
| Counsel | For Appellant: Mr. N L Rajah, Sr. Advocate Mr. S Santanam Swaminadhan Ms. Nishtha Khurana and Mr. Harshal, Advs. and For Respondents: Mr. S Vallinayagam, Adv. |
| Judges | Mrs. Ranjana P. Desai, Chairperson and Mr. I.J. Kapoor, Technical Member |
| Issue | Electricity Act, 2003 - Section 111 |
| Judgement Date | May 08, 2017 |
| Court | APTEL (Appellate Tribunal for Electricity) |
Judgment:
Mr. I.J. Kapoor, Technical Member
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The present Appeal is being filed by M/s Kamachi Sponge & Power Corporation Ltd.(hereinafter referred to as the "Appellant") under Section 111 of the Electricity Act, 2003 challenging the Order dated 23.2.2016 ("Impugned Order") passed by the Tamil Nadu Electricity Regulatory Commission (hereinafter referred to as the "State Commission"),in Petition No. P.P.A.P No. 9 of 2013. The present Appeal is against the Impugned Order on the issue of treating the entire energy pumped by the Appellant during the periods 21.10.2011 to 00.00 hours on 16.11.2011, 00.00 hours on 16.11.2011 to 22.11.2011 and 23.11.2011 to 27.11.2011 and supplied to TANGEDCO ("Respondent No.1") as unauthorized and denial of payment thereof.
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The Appellant, M/s Kamachi Sponge & Power Corporation Ltd. is a Grid connected Captive Generating Plant having capacity of 2 x 35 MW (herein referred as ''CGP'') in the State of Tamil Nadu.
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The Respondent No. 1, is Tamil Nadu Generation and Distribution Corporation Ltd. (TANGEDCO) is an electrical power generation and distribution public sector undertaking owned by the Government of Tamil Nadu.
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The Respondent No.2, Tamil Nadu Electricity Regulatory Commission is the State Regulatory Commission of Tamil Nadu, exercising jurisdiction and discharging functions in terms of the Electricity Act, 2003.
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Facts of the present Appeal:
a) The Appellant has implemented 2x35 MW grid connected Captive Generating Plant (CGP) connected with 230 kV Sub Station at Gummidipoondi near Chennai in Tamil Nadu. First Unit (35 MW) of the Appellant was synchronised with the grid on 21.10.2011 and was declared under commercial operation w.e.f 00:00 Hrs of 16.11.2011. Tamil Nadu Transmission Corporation Ltd. (TANTRANSCO) vide letter dated 4.10.2011 accorded connectivity to the first unit of the Appellant to the grid with certain terms and conditions. TANTRANSCO vide letter dated 18.11.2011 accorded approval to the Appellant for Short Term Open Access and wheeling for third party sale of the power.
b) The Second Unit (35 MW) of the Appellant was synchronised with the grid on 27.1.2012 and was declared under commercial operation w.e.f. 30.1.2012. TANTRANSCO accorded connectivity of second unit of the Appellant with the grid vide letter dated 28.11.2011 with certain terms and conditions. TANTRANSCO vide letter dated 4.2.2012 increased the open access quantum.
c) The Appellant vide letter dated 7.10.2011 requested Respondent No. 1 for purchase of infirm power from its CGP. Respondent No. 1 vide its letter dated 21.10.2011 requested for certain details in response to the Appellant''s letter dated 7.10.2011. The details were furnished by the Appellant vide its letter dated 5.11.2011.
d) The State Commission''s Order No. 4 dated 15.5.2006 (herein after referred as ''CGP Order''), regarding power purchase by Respondent No.1 and allied issues in respect of fossil fuel based Group Captive Generating Plants and fossil fuel based Cogeneration plants is applicable to the Appellant. This order sets out various terms and conditions of power purchase by distribution licensee from the CGPs.
e) The Appellant claimed payment of following infirm energy pumped into the grid from the Respondent No.1.
Sl No.
Period
Energy claimed to have been pumped
(a)
21-10-2011 to 00.00 hrs. on 16-11-2011
11,60,707 units.
(b)
00.00 hrs. on 16-11-2011 (COD Date) to 22-11-2011
7,77,826 units
(c)
23-11-2011 to 27-11-2011
3,64,475 units
The Respondent No. 1 vide its various communications denied the payment terming that the energy pumped into the grid is unauthorised and illegal and suggested the Appellant to seek remedy in accordance with law.
f) Accordingly, the Appellant filed Petition No. P.P.A.P No. 9 before the State Commission. The State Commission vide Impugned Order dated 23.2.2016 dismissed the Petition holding that entire energy pumped by the Appellant during the periods 21.10.2011 to 00.00 hours on 16.11.2011, 00.00 hours on 16.11.2011 to 22.11.2011 and 23.11.2011 to 27.11.2011 as unauthorized and denied the payment thereof.
g) Aggrieved by the Impugned Order passed by the State Commission, the Appellant has preferred the present appeal.
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QUESTIONS OF LAW
The Appellant has raised the following questions of law in the present appeal:
a. Whether after having accepted as many as 23,03,008 (Twenty three lakh three thousand and eight only) units of energy without demur and after gainfully utilising the same over a period of 30 days, was the Respondent right in no making any payment for the power utilised?
b. Whether the first Respondent does not have any responsibility of regulation of inflow into the grid from all the suppliers as in the present case energy was supplied with the full knowledge of the First Respondent for more than 30 days?
c. Whether it would be valid ground to deny justice to the Appellant just because a few more similarly placed cases are pending and they may also make a claim?
d. Whether by application of principle of unjust enrichment as also the principle of fair dealing the Appellant is not entitled to receive appropriate payments?
e. Whether the claim of the Appellant and other similarly placed persons can be termed as erroneous and illegal, when in fact the first Respondent have recovered full tariff from the end consumers and also subsidy from the Government for the energy supplied by the Appellant?
f. Whether the first Respondent is not playing the role of a trustee for the Appellant''s income while collecting tariff for energy pumped in by the Appellant?
g. Whether it would be valid ground to pass the orders on theoretical ground that pumping in electricity without a schedule it would impact the safe and economic operation, while there was no such impact in this instant case nor has the same been pleaded?
h. Whether the statement of the first Respondent is sustainable, when they accept that the connectivity to the grid is established, energy supply is received and accepted and further sold to end customers and huge profitable income is generated, however the Respondent is not agreeable to share a minimum amount from the income generated from the energy supplied by the Appellant and in turn categorises the energy as illegal supply?
i. Whether it is correct on the part of the Second Respondent not to accept the contention of the Appellant that in a similar case in Appeal No. 170 of 2012 between M/s Reliance Infrastructure Limited and Bangalore Electricity Supply Company the Hon''ble Aptel has approved payment for energy pumped without agreement?
j. Whether the Second Respondent was right in distinguishing the case of Appellant from that of the case decided by this Hon''ble Tribunal in Appeal No. 170 of 2012 between M/s Reliance Infrastructure Limited and Bangalore Electricity Supply Company when in fact there...
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