Case BriefsTribunals/Commissions/Regulatory Bodies

Appellate Tribunal for Electricity (APTEL): A Coram of Justice Manjula Chellur (Chairperson) and S.D. Dubey, (Technical Member) allowed an appeal filed against an impugned order passed by the Central Electricity Regulatory Commission.

The counsel for the appellant Anand K. Ganesan, Swapna Seshadri,  Ashwin Ramanathan and Utkarsh Singh had submitted that in 2011 the transmission system in issue was not required for the Applicant/Appellant in view of the Appellant being unable to obtain the Consent for Establishment (CFE) from the Pollution Control Board. This non-issuance of the CFE was beyond the control of the Applicant/Appellant and therefore a force majeure under the Bulk Power Transmission Agreement was entered into between the parties and further a petition had been filed before the Central Commission seeking directions on the declaration of force majeure and also return on the bank guarantee retained by Powergrid. The Central commission had disposed of the petition holding that the Applicant/Appellant had acted bona fide aggrieved by which the Applicant/Appellant had preferred an appeal which was pending before this tribunal and they further submitted that the delay was not deliberate but on bona fide reasons. 

The Tribunal while allowing the appeal condoned the delay of 148 days and found that the reasoning assigned in the application explaining the delay in filing the Appeal was satisfactory. [PEL Power Ltd. v. CERC, 2019 SCC OnLine APTEL 115, decided on 19-12-2019]

Legislation UpdatesNotifications

No. L-1/144/2013-CERC— In exercise of powers conferred under Section 178 of the Electricity Act, 2003 and all other powers enabling it in this behalf, and after previous publication, the Central Electricity Regulatory Commission hereby makes the following regulations, to amend Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2014, (hereinafter referred to as “the Principal Regulations”), namely:

1. Short title and commencement: (1) These regulations may be called the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) (Second Amendment) Regulations, 2019.

(2) These regulations shall come into force with effect from the date of notification in the Official

2. Insertion of new Regulation: The following new Regulation shall be inserted after Regulation 49 of the Principal Regulations.

“49A Transmission Majoration Factor:

Transmission Majoration Factor admissible for the transmission projects executed through JV route in terms of Regulation 4.10A of the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2001 shall be available for a period of 25 years from the date of issue of the transmission licence.”

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Electricity Regulatory Commission, New Delhi: A Bench comprising of Mr. P.K. Pujari (Chairperson), Mr. A.K. Singhal (Member) and Dr. M.K. Iyer (Member) disposed of a petition which was filed to true up the fees and charges for the period of 2009-2014 and to determine the fees and charges of certain assets for the period of 2014-2019. The tariff for Asset I, II and III were approved by an earlier petition, but the tariff for Asset IV, which was brought into commercial operation in the later stages of the 2009-14 period, was not allowed. Subsequently, the present petition also sought to approve both the tariff for the period of 2009-14 and 2014-19 on Asset IV.

Upon the direction of the Commission, the petitioner submitted documentary evidence pertaining to the time by which the project over-ran and the chronology of the events relating to it.

The Commission stated that there had been an earlier adjournment in the proceedings on account of the reassessment of the capital cost. However, the implications of such a reassessment had not been brought to the commission’s notice by the petitioners. The requirement of the details of the reassessment as well as the approval of the RCE were sine qua non for the truing up exercise for the tariff period 2009-2014 and the determination of the tariffs for the 2014-2019 period. In the absence of such approval being given by the board of directors, the petition could not be sustained, and the tariffs determined in the previous petition would continue to apply. The petitioner was given the liberty to file a fresh petition once the approval was granted. [Power Grid Corporation of India Limited v. National Thermal Power Corporation Limited, Petition No. 248/TT/2018, Order dated 20/9/2018]

Case BriefsTribunals/Commissions/Regulatory Bodies

Central Electricity Regulatory Commission: In an order passed by Gireesh B Pradhan (Chairperson), AK Singhal, AS Bakshi and MK Iyer (Members) on a  petition filed under Section 79(1)(f) of the Electricity Act, 2003 read with Regulations 44 & 45 of CERC (Terms and Conditions of Tariff), Regulations, 2014, the petiton challenged the arbitrary actions taken by NTPC.

The petition was dismissed clearly stating that nowhere explicitly or implicitly in the regulation the Letter of Credit has been recognized as the payment security mechanism and NEFT/RTGS as the mode of payment. The Commission in its previous order had noted that Regulations 34 and 35 of the 2009 Tariff Regulations clearly provides the payment through Letter of Credit and hence it was clearly allowed according to the 2009 Regulations.

Therefore, in terms of the 2014 Tariff Regulations, the Letter of Credit has now become a mode of payment security mechanism rather than mode of payment through which a beneficiary could avail rebate. The Commission also observed that, there is no fundamental difference between the 2009 and 2014 Tariff Regulations as regards the provisions related to late payment surcharge and “Payment Mechanism” in the existing Power Purchase Agreement, and hence it does not contravene the provisions 44 and 45 of Tariff Regulations, 2014. Disposing of the petition, the Commission directed the respondent being a leading power generating company in the country to be more careful in raising invoices in future. [Tata Power Delhi Distribution Limited v. NTPC Limited, Petition No.132/MP/2017, decided on 27-11-2017]

Foreign Legislation

In exercise of the powers conferred by Sections 178 (1); and 178 (2) (ze) of the Electricity Act, 2003, the Central Electricity Regulatory Commission made the Central Electricity Regulatory Commission (Power System Development Fund) Regulations, 2014  for constituting a fund to be called the Power System Development Fund(PSDF) and the utilization of the PSDF. The National Load Despatch Centre (NLDC) is to be the Nodal Agency for the implementation of the scheme under the Regulations. Also, an Appraisal Committee and a Monitoring Committee will be constituted by the Government of India for the prioritization of the various projects proposals for funding from PSDF and sanctions of those projects. Also, procedure for application, screening, appraisal, monitoring, sanction etc of PSDF has been laid down in the Regulations along with assistance pattern, execution, operation & maintenance of the assets, preparation of budget, accounts, and implementation, monitoring and control of projects.

To read the notification, click here