Appellate Tribunal For Electricity
Gujarat Electricity Transmission ... vs Central Electricity Regulatory ... on 15 July, 2011
Appeal No. 198 of 2009
Before the Appellate Tribunal for Electricity
(Appellate Jurisdiction)
Appeal No. 198 of 2009
Dated : 15th July, 2011
Present: Hon'ble Mr. Justice M. Karpaga Vinayagam, Chairperson.
Hon'ble Mr. V.J. Talwar, Technical Member
In the matter of:
Gujarat Electricity Transmission Company Ltd
Sardar Patel Vidyut Bhawan, Race Course,
Vadodara -390007 Appellant
Versus
1. Central Electricity Regulatory Commission
2. Union Territory of Daman and Diu, Daman
3. Union Territory of Dadra and Nagar Haveli, Silvassa
4. Maharashtra State Electricity Distribution Company
Limited, Mumbai
5. Gujarat Urja Vikas Nigam Ltd., Vadodra
6. Madhya Pradesh Power Trading Company Ltd., Jabalpur
7. Chhattisgarh State Electricity Board, Raipur
8. Electricity Department, Govt. of Goa, Panaji
9. Powergrid Corporation of India
10. Western regional Power Committee.
Counsel for Appellant: Mr. M.G. Ramachandran
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Appeal No. 198 of 2009
Counsel for Respondents: Mr Sakesh Kumar for R -2 & R-3
Mr Umapathi for R-6
Judgment
Per Hon'ble Shri V.J. Talwar, Technical Member
1 The Appellant, Gujarat Electricity Transmission Company
Limited (GETCO) is a transmission licensee and State
Transmission Utility (STU) in the state of Gujarat.
2 Central Electricity Regulatory Commission (Central
Commission) is the 1st Respondent. 2nd & 3rd Respondents
are Union Territories of Daman & Diu and Dadra Nagar
Haveli respectively.4th, 6th and 7th Respondents are
distribution licensees in the states of Maharashtra, Madhya
Pradesh & Chhatisgarh respectively. 5th Respondent is a
generation company in Gujarat. 8th Respondent is state
owned power department in the state of Goa. Respondent
no. 9 is Central Transmission Utility. Respondent No. 10 is a
Regional Power Committee in the Western Region.
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Appeal No. 198 of 2009
3 The Central Commission vide its Order dated 31.7.2009
determined the charges for the use of Gujarat Transmission
system for conveyance of central sector power to Union
Territories of Daman & Diu (DD) and Dadra and Nagar
Haveli (DNH). Aggrieved by this order of the Central
Commission, the Appellant has filed this Appeal
4 Factual Matrix of the case is as under;
5 The Appellant is an undertaking of Government of Gujarat. It
has been declared as State Transmission Utility of Gujarat
State under Section 39 of the Electricity Act 2003.
Respondents No. 2 and 3 have firm allocation from various
Central Sector Stations of NTPC & NPC in Western Region.
A Power Purchase Agreement had been entered into
between NTPC and other entities in Western Region
including Respondents No 2 and 3 to whom power had been
allocated from NTPC's generating stations. The transmission
network of the Respondent No 2 and 3 was not connected to
the interstate transmission network owned and operated by
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Appeal No. 198 of 2009
POWERGRID (R-9). Power allocated to the 2nd and 3rd
Respondents is delivered by POWERGRID at different inter-
connection points of the Appellant's transmission system
and thereafter it is carried by the Appellant on its
transmission system to 2nd and 3rd Respondents' system.
The Appellant has stated that the following lines are used for
delivery of power to these two Respondents.
Common transmission route between GETCO and
Daman and Dadar Nagar Haveli system
i) 400 kV Asoj - Ukai S/C (Asoj is CTU point)
ii) 220 kV Ukai - Vav D/C
iii) 220 kV Vav - Navasari D/C
iv) 220 kV Navasari - Vapi D/C
Interconnection between Dadar Nagar Haveli and
GETCO
i) 220 kV Bhilad - Magarwada D/C
ii) 66 kV Vapi - Dabhel
iii) 66 kV Vapi - Kachigam
Interconnection between Diu and GETCO
i) 400 kV Asoj - Jetpur S/C
ii) 220 kV Jetpur - Keshod D/C
iii) 220 kV Keshod - Timdi
iv) 220 kV Timdi - Dhokadwa S/C
v) 66 kV Dhokadwa - Uma S/C
vi) 66 kV Una - Diu
vii) 66 kV Kanasari - Diu
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Appeal No. 198 of 2009
6 Wheeling charges for usage of the Appellant's system for
supply to the Respondent No 2 and 3 were being determined
based on decision taken in the 110th meeting of Western
Regional Electricity Board (WREB) held on 22.5.1999. The
methodology for calculation was suggested by CEA and was
based on 'contract path method' i.e. usage of the facilities of
the Appellant involved in the transmission. The transmission
charges for usage of these facilities were shared by all the
beneficiaries, pro rata to the extent of their allocation of
central sector power.
7 By an order dated 28.2.2006, Gujarat Electricity Regulatory
Commission (Gujarat Commission) determined the
applicable transmission charges and applicable transmission
loss adjustment for the use of Appellant's network effective
from the date of the order. Thereafter, by order dated
6.5.2006, the charges were revised effective from 1.4.2006.
8 The Appellant claimed that the transmission charges and
transmission loss adjustments determined by Gujarat
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Appeal No. 198 of 2009
Commission are also applicable for conveyance of power to
2nd and 3rd Respondents and accordingly, it demanded
payment of the transmission charges and adjustment for
losses from them. Both the Respondents, however, did not
make payment of transmission charges.
9 Thereupon, the Appellant and Gujarat Urja Vikas Nigam Ltd
(R-5) filed Petition No.94 of 2006 before the Central
Commission seeking the following reliefs:
"1. The Hon'ble Commission may kindly clarify that the
"Appropriate Commission" having jurisdiction to
determine the Transmission charges of the GETCO
system being used incidental to transmission system of
CTU for transmission of Central Sector and Bilateral
power to the Union Territories of Daman & Diu and
Dadra Nagar Haveli is GERC or CERC.
2. The Hon'ble Commission may direct Respondents 1
to 7 to make the payment of transmission charges as
determined by Hon'ble Gujarat Electricity Regulatory
Commission for the year 2005-06 and 2006-07 to
GUVNL for utilization of Gujarat Energy Transmission
Corporation Network for transmission of Central Sector
and Bilateral power to DD and DNH as agreed in the
110th WRE Board Meeting held at Aurangabad on
22.5.99 and since the transmission charges as worked
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Appeal No. 198 of 2009
out by erstwhile WREB secretariat for the year 2004-05
were provisionally applicable.
3. ...
4. ...
5. In case, according to Hon'ble Commission, the
"Appropriate Commission" in the instant case is CERC,
the transmission charges may be determined for the
GETCO transmission system being used incidental to
transmission system of CTU for transmission of Central
Sector and Bilateral power to the Union Territories of
Daman & Diu and Dadra Nagar Haveli.
6. ..."
10 The Central Commission vide its order dated 4.10.2006
disposed of this petition with the following observations:
"13. The petitioners during the hearing argued that in
their view, GERC is the "Appropriate Commission" for
determination of the transmission charges for the
transmission system owned by GETCO and, according
to the petitioners, the transmission charges were
correctly determined by that Commission. It was,
however, submitted that they would abide by the
decision of this Commission in the present petition. It
appears that the petitioners have been vacillating on the
question of jurisdiction to determine the wheeling
charges. One the one hand, they submit to the
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Appeal No. 198 of 2009
jurisdiction of CERC, but on the other, they have prayed
this Commission to determine the transmission charges
for GETCO network.
14. Without expressing any opinion on the issue at this
stage, we dispose of the present petition, without
admitting, with the directions to the petitioners to
examine the question of jurisdiction afresh, based on the
interpretation of the provisions of the Electricity Act,
2003. The petitioners need to consider the different
provisions of the Act and on being satisfied about the
question of jurisdiction, make an appropriate application
in accordance with the terms and conditions for
determination of transmission charges notified by the
Commission."
11 Thereafter, Respondent No 2 filed a petition before the
Gujarat Commission for determination of transmission
charges for use of the Appellant's network. In the meantime,
Electricity Department of Goa (R-7) filed an Appeal being
No. 150 of 2007 before this Tribunal challenging the Order of
the Maharashtra Electricity Regulatory Commission
(Maharashtra Commission) dated 28.6.2006 wherein
Maharashtra Commission had, inter alia treated the
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Appeal No. 198 of 2009
intervening transmission system of Maharashtra State
Electricity Transmission Corporation Ltd. as part of the intra-
State transmission system for wheeling of power from the
Central Generating Stations and /or WREB pool of power to
the State of Goa. Taking note of the pendency of the above
Appeal, Gujarat Commission, vide its order dated 22.1.2008
disposed of the above petition, with the following directions:
"[9] We have carefully considered the submissions
made by the representatives of the parties. It is
admitted fact that same issue regarding jurisdiction is
pending before the Appellate Tribunal for Electricity.
The judgment of the Appellate Tribunal would be
binding and therefore, we dispose of the present
petition by saying that order of Appellate Tribunal will
be binding to the parties. If the judgment is in favour of
GETCO, the Appellant would have to pay the
transmission charges as determined by the
Commission in the relevant Tariff Order for GETCO.
Nevertheless the Appellant would be free to approach
the Commission in case any further clarification is
required.
[10] We order accordingly."
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Appeal No. 198 of 2009
12 In the mean time this Tribunal vide its order dated
17.12.2007, decided that the State Commission has no
jurisdiction to determine tariff for inter-State lines including
the intervening lines of the transmission company in
Maharashtra in relation to conveyance of electricity from the
State of Maharashtra to Goa.
13 The Appellant, therefore, again approached the Central
Commission for exercising the jurisdiction to determine the
tariff for conveyance of electricity through its transmission
system from the State of Gujarat to Respondent No 2 and 3
for the period 28.2.2006 and onwards.
14 The Central Commission vide its order dated 3.2.2009
decided the methodology for determining the charges for
conveyance of electricity through intervening transmission
facilities of the Appellant and directed Western Regional
Power Committee to work out the charges based on the this
methodology payable by the Respondent No.2 & 3.
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Appeal No. 198 of 2009
15 Pursuant to above direction of the Central Commission,
Western Regional Power Committee (WRPC) determined
the charges payable by Respondent No. 2 & 3 on 3.3.2009.
WRPC filed its report before the Central Commission.
16 The Central Commission disposed of the petitions filed by
the Appellant by Order dated 31.7.2009. Aggrieved by this
Order dated 31.7.2009, the Appellant has filed this Appeal.
17 Mr. M.G. Ramachandran, the learned counsel for Appellant
raised and advanced a number contentions as under:
I. The Central Commission has determined the
transmission charges for use of the inter-state
transmission network of the Appellant for wheeling of
electricity to the Respondent No. 2 & 3 following the
contract path method, which is contrary to the
Regulations framed by the Central Commission. In
terms of Open Access Regulations 2004, framed by the
Central Commission, the transmission charges are to
be levied on postage stamp basis.
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Appeal No. 198 of 2009
II. Contract path method is necessarily being that the
beneficiary is supposed to draw power on specified
path only. This means that the line should be in a
position to carry required quantum of electricity from
point of injection to point of drawal without there being
any need to utilize other transmission network of the
Appellant. In case the other part of the transmission
network of the Appellant is used in addition to the
specified contract path, the transmission charges
cannot be determined on the contract path method.
III. The reliance of the Central Commission on section 35
and 36 of the Electricity Act 2003 is misplaced. Section
35 of and 36 of the Electricity Act 2003 have no
application in the present case as the same applies
only in case of surplus capacity available which is
directed to be used by an order of the appropriate
commission under section 35. The said provisions have
no application in the present case where the
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Appeal No. 198 of 2009
transmission capacity is reserved and the transmission
charges are determined as applicable to the regular
transmission line and not to the surplus capacity.
IV. The Appellant is a regulated entity with its total Annual
Revenue Requirement is determined by the Gujarat
Commission. All the entities in the state of Gujarat
using transmission system of the Appellant are required
to pay transmission tariff on the basis of postage stamp
method. By adopting different methods for calculation of
transmission charges, the total revenue requirements of
the Appellant cannot be recovered.
V. There is a fundamental flaw in the calculation of the
transmission charges by the Central Commission even
applying the contract path method. The calculation of
the Western Regional Power Committee as adopted by
the Central Commission shows that the entire energy
accounting is done on an average basis and not on
maximum utilization or on peak utilization basis. This
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Appeal No. 198 of 2009
aspect, though specifically pointed out in the
representations filed by the appellant, has not been
dealt with by the Central Commission.
VI. The transmission charges determined by the Central
Commission have been made retrospectively applicable
by the Central Commission from 1.4.2004. The petition
filed by the Appellant was for determination of tariff only
from 1.4.2006. Till such time, the beneficiaries had paid
the transmission charges as agreed to in the Regional
Electricity Board meeting in the year 1999. In the
circumstances, there was no occasion for the Central
Commission to reopen the settled issues which were
not in dispute in the petition filed by the Appellant
before the Central Commission. Even in the case of
charges as determined by the Central Commission are
to be applied, the same ought to be applied prospective
and not retrospective.
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Appeal No. 198 of 2009
18 While challenging the admissibility of the Appeal on being
time barred, Sh Sakesh Kumar, the Learned Counsel for
the Respondent No. 2 & 3 submitted the following
contentions:
I. The present Appeal has been filed against the order
dated 31.07.2009 by which the Central Commission
approved the rates calculated by Western Regional
Power Committee. The Central Commission Vide its
order dated 03.02.2009 had laid down guidelines and
principles for determination of charges to be paid for
conveyance of central sector share of the Respondent
No. 2 & 3 through intervening transmission facilities of
the Appellant. In this order dated 03.02.2009, it was left
to the Western Regional Power Committee to do the
calculation based on the principles formulated by the
Commission. The matter was kept pending till the
calculations were made by Western Regional Power
Committee and to verify if the calculations are in line
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Appeal No. 198 of 2009
with the principles decided and directions given in the
main order of the Central Commission dated
03.02.2009. The appellant has not challenged the
order dated 03.02.2009, which has become final. In the
present Appeal only the computation of charges made
by Western Regional Power Committee could be
challenged. However, it was not the case of the
Appellant that the computation is not in accordance with
the parameters fixed by the Central Commission but in
the garb of challenging the computation order, the
appellant has not challenged the order dated
03.02.2009 which has become final. In other words the
appellant is trying to challenge the Decree itself in
execution proceedings.
II. On merits of the Appeal and other issues raised by the
Appellant, Sh Sakesh Kumar reiterated the findings of
the Central Commission in its orders dated 3.2.2009
and 31.7.2009.
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Appeal No. 198 of 2009
19 Sh Umapathi, Learned Counsel of the Respondent 6
would submit that:
I. The arrangement regarding conveyance of central
sector power through the Appellant's system is based
on Bulk Power Supply Agreement between NTPC and
all beneficiaries of Western Region including the
Appellant and the Respondent No. 2 & 3. This
agreement provided that transmission system of
POWERGRID and /or beneficiary states shall be
utilized for wheeling of power. The charges for such
wheeling shall be decided mutually with the help of
Western regional Electricity Board (now Western
Regional Power Committee). However, because of non-
consensus on the rate of transmission charges, the
matter was referred to CEA which determined charges
for period 1992-99 vide order dated 18.5.1999.
II. The CEA in its order had adopted the contract path
method as the basis for determination of wheeling
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Appeal No. 198 of 2009
charges. CEA had also considered the average MW
drawal from the system as the basis for allocation of
these charges.
III. The Central Commission has elaborately discussed the
two options i.e. postage stamp method or contract path
method in its Order dated 3.2.2009. The Central
Commission has held that the contract path method is
the only method which is in accordance with the
National Electricity Policy and Tariff Policy.
IV. The Gujarat Commission in its order dated 21.1.2008 in
petition no. 910/2007 had also made the following
observations:
"The wheeling of Central sector power to the
beneficiaries of WR may not be treated at par with
any other open access consumer, CPP or IPP
located in Gujarat Electric system. Non existence
of direct CTU transmission line for supply of
Central Sector power to the petitioner was a
collective decision of Standing Committee on
Power system planning in Western Region (having
members from WR constituents), keeping in view
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Appeal No. 198 of 2009
overall requirement of regional transmission
system as a whole and availability adequate
transmission system for transmission of Central
sector power to DD and DD. By principal of
estoppel, GETCO cannot back out under the
pretext of open access regulations for interstate
transmission."
V. In regard to determination of charges retrospectively,
Respondent no. 6 reiterated the findings of the Central
Commission and further submitted that retrospective
determination of tariff is not a new phenomenon.
Respondent 6 relied upon the minutes of 110th meeting
of WREB held on 22.5.1999. In this meeting while GEB
and MSEB had propagated in favor of determination of
tariff retrospectively from June 1992, MPEB,
predecessor of Respondent 6, had opposed it. WREB
had accepted retrospective application of tariff and
accordingly determined the tariff w.e.f. 1992. It is not
now open to the Appellant to contend to the contrary on
retrospective application of tariff.
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Appeal No. 198 of 2009
20 In the light of the submissions made by the parties, we deem
it fit to frame six questions that may arise for consideration in
this Appeal. Those questions are as follows:-
I. Whether the Appeal filed against the Central
Commission's impugned Order dated 31.7.2009
challenging the methodology adopted for determination
of applicable charges for use of transmission lines
belonging to the Appellant is maintainable in the
absence of any independent challenge to the Central
Commission's order dated 3.2.2009?
II. Whether transmission lines of the Appellant utilized in
conveyance of central sector shares of the Respondent
No. 2 & 3 are intervening transmission facilities in terms
of Section 35 & 36 of the Electricity Act 2003 or a part
of transmission network in terms of section 39 of the
Act?
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Appeal No. 198 of 2009
III. Whether the Central Commission has rightly adopted
the contract path method while determining charges for
usage of specified transmission network of the
Appellant for conveyance of Central Sector Shares of
the Respondent No. 2 & 3?
IV. Whether the Central Commission has rightly given
retrospective effect for determination of applicable
charges i.e. from 1.4.2004 when the Appellant had
approached the Central Commission for determination
of such charges as may be applicable for the period
from 1.4.2006?
V. Whether by adopting different methods for calculation
of transmission charges, the total revenue requirements
of the Appellant could not be recovered and the
Appellant's interest would suffer on this account.
VI. Whether the Central Commission has rightly approved
the calculations of the Western Regional Power
Committee making entire energy accounting on
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Appeal No. 198 of 2009
average basis and not on the basis of maximum
utilization of the capacity during the relevant period?
21 We shall now deal with each of the above questions one by
one.
22 First question to be decided as to whether the Appeal filed
against the Central Commission's Order dated impugned
order dated 31.7.2009 challenging the methodology adopted
for determination of applicable charges for use of
transmission lines belonging to the Appellant is maintainable
in the absence of any independent challenge to the Central
Commission's order dated 3.2.2009?
23 The Appellant has submitted that the Central Commission's
Order dated 3.2.2009 was only an interim order. The Central
Commission passed its final order only on 31.7.2009. No
doubt that the guidelines and principals for determination of
charges were enunciated by the Central Commission in
order dated 3.2.2009, but the same were reaffirmed in later
order dated 31.7.2009. Thus the later order dated 31.7.2009
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Appeal No. 198 of 2009
was final order and the Appellant has every right to
challenge findings of the Central Commission as per this
order.
24 On the other hand learned counsel for the Respondent No. 2
& 3 and Respondent No. 6 stoutly refuted the contention of
the Appellant and submitted that order dated 3.2.2009 was
final order as far as setting guidelines and principles for
determination of charges are concerned; by the said order,
the Central Commission had directed Western Regional
Power Committee to work out the charges based on
principles formulated by the Central Commission in its order
dated 3.2.2009; the impugned order dated 31.7.2009 was
only a compliance order and verified whether the
calculations made by Western Regional Power Committee
were in conformity with the principles decided and directions
given in the main order of the Central Commission dated
03.02.2009. The Appellant could have challenged the main
order dated 3.2.2009 within the specified time frame;
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Appeal No. 198 of 2009
Appellant having preferred not to challenge the main order
dated 3.2.2009 with in time, it is not open to him now to
challenge the findings of the main order dated 3.2.2000
through the challenge to the compliance order dated
31.7.2009.
25 To this contention of learned counsel for the Respondent No.
2 & 3, learned counsel for the Appellant submitted that the
Appeal against the order dated 3.2.2009 was not preferred
as the Appellant was not aware of its outcome and that it is
only after the calculations made by Western Regional Power
Committee indicated that the transmission charges had
reduced further, the Appellant decided to challenge the
contract path method adopted by the Central Commission
for determining the transmission charges for use of its
transmission system.
26 We are unable to accept to the reasons adduced by the
Appellant for not challenging the Central Commission Order
dated 3.2.2009. From the Appellant's own submission, it is
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Appeal No. 198 of 2009
evident that the Appellant would have accepted the
principles laid down by the Central Commission if the
calculations of made by WRPC had gone in their favour.
This only shows that the Appellant had no objection to the
methodology adopted by the Central Commission but have
only objection to final outcome of the exercise.
27 Admittedly the Appellant had filed petitions before the
Central Commission being no. 64/2008 & 67/2008 for
fixation of and adjudication on the transmission charges for
use of the Gujarat transmission system for conveyance of
central sector power to Union Territory of Daman & Diu and
Dadra Nagar and Havely respectively. The Central
Commission merged both the petitions and passed two
common orders. First order was passed on 3.2.2009 and
second order was passed on 31.7.2009. The main
contention of the Appellant is that the first order was only an
interim order and second order was final order. The
Respondent No. 2 & 3 on the other hand claim that first
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Appeal No. 198 of 2009
order was main order, so far as issue at hand is concerned,
and second order was only a compliance order.
28 In our opinion when two or more orders are passed against
the same petition, the sequence of orders does not define
the nature of the orders. It is the wordings and content of the
respective orders which would decide as to whether order
was final or not. With a view to decide whether the order
dated 3.2.2009 was final or not, let us examine the findings
of the Central Commission. Relevant findings of the Central
Commission in its order dated 3.2.2009 read as under:
"32. We are conscious of the fact that in the interim
order dated 21.7.2004 in Petition No 6/2004 in the
matter related to determination of wheeling charges for
the use of Orissa transmission system for transmission
of power to MPSEB under the 2001 tariff Regulation for
the period 2001-04 , the Commission had stated that
after implementation of open access regulations,
charges shall be payable under those regulations.
However, we are of the opinion that the matter relating
to use of State transmission system for conveyance of
power to other licensees is more appropriately covered
under Sections 35 and 36 of the Act. These explicit
statutory provisions cannot be ignored. We are
therefore proceeding by specifying method of
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Appeal No. 198 of 2009
calculation of the transmission charges in the present
case. In due course, the Commission will come out with
draft regulations under Section 36 of the Act so as to
deal with the issue of determination of transmission
charges for intervening inter-State transmission
facilities.
33. Above discussion leads one to the conclusion that it
is appropriate to apply Contract Path method in
preference to Postage Stamp method, The following
distinct consideration in favour of this method cannot be
overlooked:
(a) This method fits in well with the philosophy
contained in the National Electricity Policy and Tariff
Policy.
(b) It is in line with Sections 35 sand 35 of the Act,
which require determination of transmission charges for
intervening transmission facility. Therefore, these
sections read with conclusion drawn by the Appellate
Tribunal imply that in cases such as the present one, to
the extent possible, specific transmission elements
used in conveyance of power have to be identified.
(c) The Contract Path method was the agreed
arrangement for the period beginning 1992-93 till
GETCO raised the issue in the form of Petition 94/2006
filed in August 2006.
(d) Probably because the method is just and fair. In
fact, the same was specified by the Commission in the
2001 regulations during the tariff period 2001-04 for
determination of charges in case the parties were not
able to reach to an agreement.
......
......
38. Based on the above, we direct Member Secretary, Western Regional Power Committee to submit to the Commission detailed calculation of the transmission Page 27 Appeal No. 198 of 2009 charges for transmission of power to DD and DNH within one month of issuance of this order. The calculations shall be made based on following guidelines:
(a) The transmission assets used for transmitting power to DD and DNH shall be identified as under:"
.....
.....
29 From the above findings of the Central Commission in its Order date 3.2.2009, it is clear that the Central Commission had taken a categorical decision to adopt the contract path method and directed Western Regional Power Committee to submit detailed calculations of the transmission charges for transmission of power to the Respondent No. 2 & 3.
30 In view of above, we do not accept the submission of the Appellant and we agree with the contention taken by the Respondent No. 2 & 3 that the order dated 3.2.2009 was final order in regard to adoption of contract path method.
31 Despite the above findings, we are not inclined to dismiss the Appeal merely on this technical ground. The Appellant has statutory right of Appeal against any order of the Page 28 Appeal No. 198 of 2009 Appropriate Commission. Admittedly the Appeal has to be filed within 45 days from date of impugned order. Appeals filed after 45 days can be admitted on application for condonation of delay. This Tribunal had been admitting the delayed Appeals after condoning the delay. In the present Appeal, of course, there is no interlocutory application for condonation of delay. However, we are inclined to decide the issue on merits as the Appeal has already been admitted.
32 The next question for our consideration as to whether the transmission lines of the Appellant utilized in conveyance of Central Sector share of the Respondent No. 2 & 3 are intervening transmission facilities in terms of Section 35 & 36 of the Electricity Act 2003 or a part of transmission network in terms of section 39 of the Act.
33 In order to appreciate the point in issue, it will be necessary to set out the relevant provisions of Sections 35, 36 and 39 of the Act:
Page 29 Appeal No. 198 of 2009
35. Intervening transmission facilities.--The Appropriate Commission may, on an application by any licensee, by order require any other licensee owning or operating intervening transmission facilities to provide the use of such facilities to the extent of surplus capacity available with such licensee: Provided that any dispute, regarding the extent of surplus capacity available with the licensee, shall be adjudicated upon by the Appropriate Commission.
36. Charges for intervening transmission facilities.--(1) Every licensee shall, on an order made under section 35, provide his intervening transmission facilities at rates, charges and terms and conditions as may be mutually agreed upon:
Provided that the Appropriate Commission may specify rates, charges and terms and conditions if these cannot be mutually agreed upon by the licensees. (2) The rates, charges and terms and conditions referred to in sub-section (1) shall be fair and reasonable, and may be allocated in proportion to the use of such facilities.
Explanation.--For the purposes of sections 35 and 36, the expression "intervening transmission facilities"
means the electric lines owned or operated by a licensee where such electric lines can be utilised for transmitting electricity for and on behalf of another licensee at his request and on payment of a tariff or charge.
.....
39. State Transmission Utility and functions.--(1) The State Government may notify the Board or a Government company as the State Transmission Utility:
Page 30 Appeal No. 198 of 2009 ...
(2) The functions of the State Transmission Utility shall be--
(a) to undertake transmission of electricity through intra-State transmission system;
....
(d) to provide non-discriminatory open access to its transmission system for use by--
(i) any licensee or generating company on payment of the transmission charges; or ..." {emphasis added} 34 The perusal of above sections would make it clear that the Act has made two distinct provisions enabling any licensee to use the transmission system of another licensee. Principles of harmonious construction of statue demand that these two provisions are to be interpreted in such a way that application of one must not make other provision otiose or redundant.
35 We would now proceed to examine the issue in the light of above observation.
Page 31 Appeal No. 198 of 2009 36 Sh M G Ramachandran, learned counsel for the Appellant would submit that Sections 35 of and 36 of the Electricity Act 2003 have no application in the present case as the same applies only in case of surplus capacity available which is directed to be used by an order of the Appropriate Commission under section 35. He also submitted that the said provisions have no application in the present case where the transmission capacity is reserved and the transmission charges are determined as applicable to the regular transmission line and not to the surplus capacity. 37 We are unable to agree with this contention of the Appellant for the following two reasons:
i. Acceptance of this contention would make the provisions of section 35 & 36 otiose and redundant.
ii. Scrutiny of sections 35, 36, 38, 39 and 40 of the Act would reveal that the Central Commission does not have jurisdiction to determine the transmission charges Page 32 Appeal No. 198 of 2009 for use of transmission system of State Transmission Utility or Intra-state transmission licensee. The Central Commission's jurisdiction in this regard is restricted to:
a. Specify the payment of transmission charges and surcharge thereon for use of the transmission system belonging to the CTU under section 38 of the Act and other inter-state transmission licensees under section 40 of the Act, b. Specify rates, charges and terms and conditions for use of intervening (inter-state) transmission facilities, if these cannot be mutually agreed between the licensees under section 36 of the Act.
Undoubtedly, the Appellant is a State Transmission Utility in the state of Gujarat and is deemed transmission licensee of Gujarat Commission under section 39 of the Act. By virtue of Section 86 (1) (a) Page 33 Appeal No. 198 of 2009 read with Section 181 (2)(i), Gujarat Commission is the Appropriate Commission and only Gujarat Commission has jurisdiction to determine transmission charges for use of the Appellant's system in terms of section 39 of the Act. The Central Commission would gather jurisdiction to determine charges for use of the Appellant's transmission system by another licensee only under sections 35 & 36 of the Act.
38 The Central Commission, while dealing with the issue of its jurisdiction, in suo muto proceedings in petition no 48/2003 had also expressed similar views. Relevant extract of the Central Commission's order in this suo muto proceedings dated 14th November 2003 is reproduced below:
"8. Under Section 35, the Appropriate Commission may, on an application by any licensee, by order require any other licensee owning or operating intervening transmission facilities to provide the use of such facilities to the extent of surplus capacity available with such licensee. Any dispute, regarding the extent of surplus capacity available with the licensee, shall be adjudicated upon by the Appropriate Commission. As Page 34 Appeal No. 198 of 2009 mandated by Section 36 (1), every licensee shall, on an order made under Section 35, provide his intervening transmission facilities at rates, charges and terms and conditions as may be mutually agreed upon. However, the Appropriate Commission may specify rates, charges and terms and conditions if these cannot be mutually agreed upon by the licensees.
9. ....
10. In the light of above statutory provisions, the jurisdiction of the Central Commission is as follows:-
(a) To specify by regulations the provisions for non-
discriminatory use of inter-state transmission system as defined in Clause (36) of Section 2,
(b) To specify the payment of transmission charges and surcharge thereon for use of the transmission system belonging to the CTU and other inter-state transmission licensees, ...
(f) To specify rates, charges and terms and conditions for use of intervening (inter-state) transmission facilities, if these cannot be mutually agreed between the licensees.
39 Further, this Tribunal in the matter of Electricity Department, Government of Goa Versus Maharashtra Electricity regulatory Commission being Appeal no. 150 of 2007 has held that system of Maharashtra Transmission Utility used Page 35 Appeal No. 198 of 2009 for conveyance of electricity for Goa is intervening transmission system and only the Central Commission has jurisdiction to determine charges payable in such matters. The relevant portion of this Tribunal's Judgment is reproduced below:
"5. We, therefore, find that firstly MERC has no jurisdiction to determine tariff of inter-State transmission line including the intervening lines of MSETCL and, therefore, the directions of MERC to make inter-State transmission tariff applicable to quantum of electricity transmitted to Goa is in contravention to the provisions of the Act. The learned counsel for the respondent Commission has also fairly conceded the legal position as explained above.
6. In view of the above, we allow the Appeal and set aside the impugned order dated 28th June, 2006 insofar as it relates to recovery of transmission charges for the intervening transmission system of MSETCL when it is used as inter-State transmission line. We also direct that no coercive action is to be taken to disrupt transmission of electricity to Goa and direct MSETCL to continue to accept payment of transmission charges as per the existing prevailing regional norms determined by CERC and raise the new bill accordingly and adjust the payments, if made, Page 36 Appeal No. 198 of 2009 from the date the impugned order has come into effect."
{emphasis supplied} 40 Finally, let us now examine the findings of the Commission in its order dated 3.2.2009. The relevant extract of the Central Commission's order is reproduced below:
"29 Our attention has also been drawn to Sections 35 and 36 of the Act reproduced below:
...
30. Plain reading of these sections reveals that the case in hand falls in the category of intervening transmission facility as defined in the explanation to Section 36. In the present case, intervening transmission facility owned by the petitioner is used for conveyance of power to Respondents Nos 1 and 2 which are deemed to be licensees in terms of third proviso to Section 14 of the Act. We have noted that in general, the term used in the Act is 'transmission system' and only in these two sections the term 'transmission facility' has been used. In our opinion, this clearly implies that for the purpose of Sections 35 and 36, the transmission assets specifically used for the transaction have to be identified. During hearing, Shri D. Khandelwal appearing for MPPTCL had argued that since Section 36 talks about intervening transmission facility, the Commission is required to identify the intervening transmission facility and not to apply postage stamp rate determined by GERC. In this Page 37 Appeal No. 198 of 2009 context, he submitted copy of the judgment dated 31.10.2007 of the Appellate Tribunal in the matter of Hindalco Industries Ltd (appellant) Vs West Bengal State Electricity Regulatory Commission & others. In the said judgment, the Appellate Tribunal had directed WBERC to calculate wheeling charges taking into account applicable distribution network cost.
Expanding on the term 'applicable network', the Appellate Tribunal had held that CESC had network at various voltage levels, but since the appellant was drawing power at 33 kV, there was no reason as to why it should pay for LT lines which are not being used. Though facts of the present case are not exactly same as the case decided by the Appellate Tribunal, the basic principle adopted by the Appellate Tribunal in the above case is capable of application in the present case before us. Thus there is a need to identify applicable transmission elements which are used for conveyance of power to Respondents Nos 1 and 2." 41 The submission made by the Appellant that Sections 35 and 36 of the Electricity Act 2003 have no application to the present case as the same applies only to the case of surplus capacity available and not where transmission capacity is reserved is misconceived.
Page 38 Appeal No. 198 of 2009 42 Scrutiny of records placed before us would reveal that Regional transmission system is planned keeping in view the overall regional requirements. Since the consumption of the Respondent No. 2 & 3 was not significant in the initial stages of system development, no direct CTU link was envisaged for them. Surplus capacity available with the intervening transmission system of the Appellant was utilized to transfer the share of the Respondent No. 2 & 3. As the load demand of the Appellant and the Respondent No. 2 & 3 increased over the time, the surplus capacity got reduced considerably. Necessity of direct link between systems of the Respondent No. 2 & 3 with CTU was felt and same was established by Central Transmission Utility in 2005-06. Thus, only surplus capacity available with the Appellant's system was utilized till it was available. When the available surplus capacity became inadequate, a direct link from CTU system to the system of the Respondent No. 2 & 3 was established. If the capacity in the Appellant's transmission system was Page 39 Appeal No. 198 of 2009 reserved for the Respondent No. 2 & 3, as claimed by the Appellant, then there was no need to establish the direct link with CTU system.
43 In view of above discussions, we hold that transmission system of the Appellant involved in the conveyance of central sector share to the Respondent No. 2 & 3 is intervening transmission system in terms of section 35 and 36 of the Act. Hence we do not find any reason to interfere with the findings of the Central Commission. 44 Next question for our consideration as to Whether the Central Commission has rightly adopted the contract path method while determining charges for usage of specified transmission network of the Appellant for conveyance of Central Sector Shares of the Respondent No. 2 & 3? 45 Sh M G Ramachandaran, the learned counsel for the Appellant submitted that the Central Commission had adopted the Postage stamp method for determining the transmission charges in its Open Access (in Inter-state Page 40 Appeal No. 198 of 2009 Transmission) Regulations, 2004. These Regulations are binding and the Central Commission ought to have followed the same while fixing the transmission charges for usage of the Appellant's transmission system by the Respondent No. 2 & 3.
44 The Appellant has heavily relied on the Central Commission's orders dated 14.11.2003 and 31.1.2004. The Appellant's arguments revolve around the Central Commission's Tariff Regulations, 2001, Tariff Regulations, 2004 and Open Access Regulations, 2004. In the Order dated 31.1.2004, the Central Commission had held that clause 4.9 of the notification dated 26.3.2001 dealing with wheeling charges shall not be applicable after the regulations on open access in the inter-state transmission have come into force.
45 Let us have a relook at the provisions of Section 35 and 36 of the Act along with relevant provisions of Tariff Page 41 Appeal No. 198 of 2009 Regulations, 2001, Tariff regulations, 2004 and Open Access Regulations 2004.
46 Section 35 & 36 of the Act dealing with intervening transmission facilities are reproduced below:
"35. Intervening transmission facilities.--The Appropriate Commission may, on an application by any licensee, by order require any other licensee owning or operating intervening transmission facilities to provide the use of such facilities to the extent of surplus capacity available with such licensee:
Provided that any dispute, regarding the extent of surplus capacity available with the licensee, shall be adjudicated upon by the Appropriate Commission.
36. Charges for intervening transmission facilities.--(1) Every licensee shall, on an order made under section 35, provide his intervening transmission facilities at rates, charges and terms and conditions as may be mutually agreed upon:
Provided that the Appropriate Commission may specify rates, charges and terms and conditions if these cannot be mutually agreed upon by the licensees.
(2) The rates, charges and terms and conditions referred to in sub-section (1) shall be fair and reasonable, and may be allocated in proportion to the use of such facilities." { emphasis added} ...
Page 42 Appeal No. 198 of 2009 47 Perusal of above sections would indicate that one of the essential feature of section 36 is the rates and charges at which the intervening facilities of a licensee could be availed of are firstly to be mutually agreed. The role of the Appropriate Commission would come in to play only when there is no mutual agreement arrived at. 48 Let us now examine whether such provision of mutual agreement between the parties has been made in Tariff Regulations 2001, Tariff Regulations 2004 and Open Access Regulations 2004.
49 Clause 4.9.2 of Tariff Regulations 2001 dealt with wheeling of power through transmission system of STU/state utility and read as under:
"4.9.2 Wheeling through SEB/State Utility system:
4.9.2.1 In case of wheeling of power through SEB/state utility system, the importing utility and the wheeling utility shall endeavour to mutually agree on wheeling charges as well as transmission losses. In such cases, approval of the Commission shall not be required. However, the wheeling utility shall not deny Page 43 Appeal No. 198 of 2009 use of its system merely on the basis of non-agreement on wheeling charges.
4.9.2.2 If the parties are not able to agree on the wheeling charges, the Contract Path method shall be used for calculation of wheeling charges.
Monthly transmission charges of this path would be payable in proportion to contracted power vis-à-vis SIL of the lines in the contracted path. The monthly transmission charges for the contract path shall be calculated as per the provisions of this notification." {emphasis added 50 Regulation 16 of the Open Access Regulations 2004 dealing with transmission charges is reproduced below:
"16. The transmission charges for use of the transmission system of the transmission licensee for inter-state transmission shall be regulated as under, namely: (i) The annual transmission charges shall be determined and after deducting the adjustable revenue from the short-term customers, these charges shall be shared by the long-term customers in accordance with the terms and conditions of tariff notified by the Commission from time to time."
51 Whereas, simple reading of clause 4.9.2 would indicate that provisions contained in it were in line with the provisions of Section 36 of the Act, there is no such provision of mutual Page 44 Appeal No. 198 of 2009 agreement in Open Access Regulations 2004. Regulations framed by Appropriate Commission under the Act are Subordinate Legislation. Subordinate Legislation cannot overrule or deviate from provisions of Parent Act. Accordingly, we conclude that Open Access Regulations, 2004 being not in conformity with the provisions of Section 36 of the Act would, therefore, not be applicable in cases of intervening transmission facilities covered under Section 35 & 36 of the Act.
52 The Central Commission has dealt with the issue in hand in detail in its Order dated 3.2.2009. The relevant portion of the said Order is reproduced below:
"32. We are conscious of the fact that in the interim order dated 21.7.2004 in Petition No 6/2004 in the matter related to determination of wheeling charges for the use of Orissa transmission system for transmission of power to MPSEB under the 2001 tariff Regulation for the period 2001-04, the Commission had stated that after implementation of open access regulations, charges shall be payable under those regulations. However, we are of the opinion that the matter relating to use of State transmission system for conveyance of power to other licensees is more appropriately covered Page 45 Appeal No. 198 of 2009 under Sections 35 and 36 of the Act. These explicit statutory provisions cannot be ignored. We are therefore proceeding by specifying method of calculation of the transmission charges in the present case. In due course, the Commission will come out with draft regulations under Section 36 of the Act so as to deal with the issue of determination of transmission charges for intervening inter-State transmission facilities.
33. Above discussion leads one to the conclusion that it is appropriate to apply Contract Path method in preference to Postage Stamp method, The following distinct consideration in favour of this method cannot be overlooked:
(a) This method fits in well with the philosophy contained in the National Electricity Policy and Tariff Policy.
(b) It is in line with Sections 35 sand 35 of the Act, which requires determination of transmission charges for intervening transmission facility. Therefore, these sections read with conclusion drawn by the Appellate Tribunal imply that in cases such as the present one, to the extent possible, specific transmission elements used in conveyance of power have to be identified.
(c) The Contract Path method was the agreed arrangement for the period beginning 1992-93 till GETCO raised the issue in the form of Petition 94/2006 filed in August 2006.
(d) Probably because the method is just and fair. In fact, the same was specified by the Commission in the 2001 regulations during the tariff period 2001-04 for determination of charges in case the parties were not able to reach to an agreement." {Emphasis added} Page 46 Appeal No. 198 of 2009
53 From the findings of the Central Commission referred to above it can be seen that the Central Commission has held that the contract path method is in line with the National Tariff Policy and Sections 35 and 36 of the Act and was just and fair.
54 Finally, the Appellant has placed strong reliance on phrase 'transmission charges' used in Sections 38, 39 and 40 of the Act. The Appellant has contended that transmission charges can be determined only under these sections. Undoubtedly transmission charges for open access customers are to be determined under the provisions of these sections. However, the present case comes with in ambit of sections 35 & 36 of the Act. As brought out above Section 36 of the Act provide for usage of intervening transmission facilities at rates and charges to be mutually agreed. It further provides that such rates and charges are to be reasonable and fair. Thus charges to be levied under section 36 are different from transmission charges covered under sections 38 to 40 of the Page 47 Appeal No. 198 of 2009 Act. Accordingly their basis for determination can also be different.
55 In the light of above discussions, we are in agreement with the findings of the Central Commission and hold that the Contract Path Method was the only method which would meet the requirements of Section 35 & 36 of the Act. The question is answered accordingly.
56 Next Question for our consideration as to whether the Central Commission has rightly given retrospective effect for determination of applicable charges i.e. from 1.4.2004 when the Appellant had approached the Central Commission for determination of such charges as may be applicable for the period from 1.4.2006?
57 Findings of the Central Commission on the issue read as under:
"25. The first issue to be addressed is the date from which transmission charges determined pursuant to these petitions shall be applicable. The petitioner has prayed that transmission charges be determined from Page 48 Appeal No. 198 of 2009 28.2.2006, the date on which GERC had issued orders prescribing transmission charges and loss adjustments. However, during the hearing held on 7.8.2008, in response to query of the Commission, learned counsel for the petitioner submitted that transmission charges would need to be determined from 1.4.2006 onwards and they would not make any claim for the period prior thereto .As has been pointed out by the respondents, Regulation 4.9.2 of the Central Electricity Regulatory Commission (Terms & Conditions of Tariff) Regulations, 2001 (the 2001 regulations) notified on 26.3.2001 specifically dealt with wheeling system of SEB/State utility. It may be pointed out that prior to the Act the term 'wheeling' was used to denote third party use of the transmission system. However, these regulations were applicable only up to 31.3.2004, after which the Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2004, (the 2004 regulations) notified on 26.3.2004 become applicable from 1.4.2004 to 31.3.2009. The 2004 regulations do not have any specific provision for use of SEB/STU network for third party transmission. Thus, with effect from 1.4.2004, there is a vacuum with regard to determination of transmission charges for use of transmission system of a utility, which is neither buyer nor seller of the power flowing through this system. Therefore, we are in agreement with MPPTCL that we have to determine transmission charges with effect from 1.4.2004."{Emphasis added} Page 49 Appeal No. 198 of 2009
58 Thus the Central Commission has categorically held that after 1.4.2004 there was a vacuum with regard to determination of charges for usage of intervening transmission facilities. We have also held in para 50 above that Open Access Regulations, 2004, being not in conformity with the provisions of Section 36 of the Act, would not be applicable in cases of intervening transmission facilities covered under Section 35 & 36 of the Act. 59 Since there were no effective Regulations since 1.4.2004 to determine charges for usage of intervening transmission facilities, the Central Commission has rightly given retrospective effect for determination of applicable charges. The question is answered accordingly. 60 The next question for our consideration as to whether by adopting different methods for calculation of transmission charges, the total revenue requirements of the Appellant cannot be recovered and the Appellant would suffer on this account.
Page 50 Appeal No. 198 of 2009 61 The apprehensions of the Appellant that by adopting different methods for recovery of transmission charges it would not be able to recover its total revenue requirements is unfounded. We would like to clarify that in regulatory regime the Appropriate State Commission would determine the total ARR of the licensee after taking in to account all the assets of the utility. The revenue received from open access customers, such as Captive Wind Turbine Generators, and other licensees utilizing intervening system etc., would be considered as part of non-tariff income. Non-tariff income of the transmission licensee would be subtracted from the total ARR of the utility and net ARR is recovered from distribution licensee(s). It would be pertinent to mention here that in the state of Gujarat, the transmission charges are not recovered uniformly on 'postage stamp' basis from all users of transmission system. Captive Wind Turbine Generators in Gujarat pay transmission & wheeling charges in kind as some percentage of the electrical energy transmitted. Thus Page 51 Appeal No. 198 of 2009 different methods of recovery of transmission charges are already in place in Gujarat and without prejudice to the interests of the Appellant.
62 The question is answered accordingly. 63 Next issue before us for our consideration is whether the Central Commission has rightly approved the calculations of the Western Regional Power Committee making entire energy accounting on average basis and not on the basis of maximum utilization of the capacity during the relevant period?
64 In order to appreciate the point in issue, it will be necessary to examine the decisions taken at REB/RPC level. 65 The records placed before us indicate that for the first time the issue was taken up in Western Regional Electricity Board's 110th meeting held on 22.5.1999. In this meeting it was decided to accept the methodology adopted by CEA for calculation of annual charges since June 1992 payable to GEB/MSEB for wheeling central sector power to the Page 52 Appeal No. 198 of 2009 Respondent No. 2 & 3. Relevant portion of minutes of meeting is reproduced below:
"Member (G&O), CEA observed that it was a disputed issue referred to CEA and having decided on the principles, the decision of CEA for fixing the rates since June 1992 should not be reopened. Chairman MSEB/WREB agreed with the views of Member (G&O), CEA. The Board decided to accept the methodology adopted by CEA for calculation of annual wheeling charges since June 1992 payable to GEB/MSEB for wheeling central sector power to DD & DNH and Goa respectively"
66 The calculations sheets submitted by CEA vide its letter dated 18.5.1999 and adopted by WREB in 110th meeting held on 22.5.1999 revealed that CEA had apportioned annual fixed charges (of the intervening transmission facilities) in the ratio of average 'MW' drawal during the year and Surge Impedance Loadings of the concerned lines. The relevant portion of CEA's letter dated 18.5.1999 is reproduced below:
" (i) Contract Path Method' has been used for working out the wheeling charges. The contacted path is the Page 53 Appeal No. 198 of 2009 EHV transmission of the wheeling system from the delivery point of central sector system to the point of supply to the recipient system. The contacted path for Goa and DNH & DD considered are:
(ii)....
(iii) The annual fixed charges has been apportioned to wheeling of central sector power in the ratio of average 'MW' drawal during the year and SIL of the 400/220 kV lines..."
67 This method of apportionment of wheeling charges in ratio of average 'MW' drawal during the relevant year and SIL of the lines had been in use since 1992. The Appellant had not questioned this principle of apportionment throughout the period. Western Regional Power Committee has adopted exactly the same method of apportionment. The issue has attained finality through usage and we are not inclined to reopen it at this stage.
68 The question is answered accordingly. 69 Summary of our findings.
Page 54 Appeal No. 198 of 2009 I. We do not agree with the contention of the Appellant and we accept the submission made by the Respondent No. 2 & 3 that the Central Commission's order dated 3.2.2009 was final order in regard to adoption of contract path method. II. Transmission system of the Appellant involved in the conveyance of central sector share to the Respondent No. 2 & 3 is intervening transmission system in terms of section 35 and 36 of the Act. Therefore, we do not find any reason to interfere with the findings of the Central Commission. III. We are in agreement with the findings of the Central Commission and hold that the Contract Path Method was the only method which would meet the requirements of Section 35 & 36 of the Act. IV. Since there were no effective Regulations since 1.4.2004 to determine charges for usage of intervening transmission facilities, the Central Page 55 Appeal No. 198 of 2009 Commission has rightly given retrospective effect for determination of applicable charges. V. In regulatory regime, the Appropriate State Commission would determine the total ARR after taking in to account all the assets of the utility. The revenue received from open access customers, such as Captive Wind Turbine Generators, and other licensees utilizing intervening system etc., would be considered as part of non-tariff income. Non-tariff income of the transmission licensee would be subtracted from the total ARR of the utility and net ARR is recovered from distribution licensee(s). It would be pertinent to mention here that in the state of Gujarat, the transmission charges are not recovered uniformly on 'postage stamp' basis from all users of transmission system. Captive Wind Turbine Generators in Gujarat pay transmission & wheeling charges in kind as certain Page 56 Appeal No. 198 of 2009 percentage of the electrical energy transmitted as approved by the Gujarat Commission. Thus different methods of recovery of transmission charges are already in place in Gujarat without prejudice to the interests of the Appellant. VI. The method of apportionment of wheeling charges in ratio of average 'MW' drawal during the relevant year and SIL of the lines had been in use since 1992. The Appellant had not questioned this principle of apportionment throughout the period. Western Regional Power Committee has adopted exactly the same method of apportionment. The issue has attained finality through usage and we are not inclined to reopen it at this stage. 70 In view of our above findings, we do not find any ground to interfere with the impugned order of Central Electricity Regulatory Commission dated 31.7.2009. Hence, Appeal Page 57 Appeal No. 198 of 2009 being devoid of merit is dismissed. However, there is no order as to cost.
71 Pronounced in the open court today the 15th July, 2011.
(V J Talwar) (Justice M Karpaga Vinayagam)
Technical Member Chairperson
INDEX : REPORTABLE/NON-REPORTABLE
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