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8. In view of the substantial increase in the tariff, the Appellants being the bulk supply consumers have filed these Appeals challenging the impugned order dated 25.11.2009.

9. The Learned Counsel for the Appellant has urged the following grounds while assailing the order impugned:

(i) Though the impugned order was said to have been passed under the Fuel and Power Purchase Cost Adjustment (FPPCA), actually it is not FPPCA determined under the Formula and on the other hand, the order impugned is a tariff order increasing Judgement in Appeal No.51 of 2010 the tariff by way of amendment. Such an order can not be passed without giving an opportunity to the consumers and without hearing from the affected parties as per the mandatory requirements u/s 64 (3) and 86 (3) of the Electricity Act, 2003.

23. We will deal with the question as to whether the ad- hoc increase in tariff allowed by the State Commission is exclusively to cover the fuel and power purchase cost, as specified in the Regulations.

24. Let us now examine the scheme for Fuel and Power Purchase Cost Adjustment(FPPCA) according to the Regulations. The relevant Regulations 2.8.7.1. to 2.8.7.3 and 4.8.8 are reproduced below:-

Judgement in Appeal No.51 of 2010 "2.8.7 Fuel and Power Purchase Cost Adjustment 2.8.7.1 For 2008-09 and for each subsequent ensuing year or base year the fuel and power purchase cost admissible under the process of FPPCA in respect of a generating company or a licensee shall be worked out as per the relevant formula as specified in Schedule-7, as amended, and that shall also include the impact of gain-sharing as per schedule - 9B related to the parameters of fuel cost, power purchase cost and transmission and distribution loss. Any variation in expenditure on account of FPPCA arising out of variation of price for fuel or heat value of fuel or power purchase cost etc. or an FPPCA against old power purchase liabilities, arising from earlier period's purchase of power shall be either adjusted with the ARR of the next earliest available ensuing year during the stage of tariff determination for recovery / refund through tariff or allowed to be recovered from or Judgement in Appeal No.51 of 2010 refunded to the consumers through a separate order of the Commission, as the Commission may decide.
2.8.7.2 A generating company or a licensee shall submit its FPPCA claim for any year within forty five days of the completion of its accounts for that year with necessary statutory audited data and a copy of the statutorily audited Annual Accounts for that year.

If a generating company or a licensee does not submit its FPPCA claim for any year within the specified date, the Commission may suo-moto undertake FPPCA for the generating company or licensee for that year on the basis of available records. If the Commission, undertakes FPPCA for any base year or ensuing year suo-moto, no subsequent claim from the generating company or licensee regarding FPPCA for that base year or ensuing year shall be entertained in future. 2.8.7.3 The Commission may, at any time at its discretion, allow an ad hoc fuel cost or power purchase cost provisionally in any year to a generating company or a licensee suo-moto or on the basis of an application filed by the generating company or licensee subject to adjustment of the same in the FPPCA for that year."

28. The amount payable by the second Respondent to WBPDCL, CESC, DPL and DPSCL also pertains to difference in rate at which the second Respondent is purchasing power from these agencies and that allowed in Judgement in Appeal No.51 of 2010 the ARR. Normally, this amount should have been adjusted at the end of the FY 2009-10 according to the Regulations 2.8.7.1 & 2.8.7.2. However, the State Commission under Regulation 2.8.7.3 is empowered to allow the power purchase cost provisionally during the year. In this case the distribution licensee (R-2) has filed the petition on 23.9.2009 praying for ad hoc increase of power purchase cost inbuilt in the tariff for FY 2009-10 in terms of regulation 2.8.7.3 as it was experiencing severe cash flow problem. The State Commission accordingly determined the FPPCA for the FY 2009-10 and decided the provisional tariff increase. However, the State Commission allowed the recovery at the enhanced tariff prospectively w.e.f. November 2009 and not from 1.4.2009 as prayed by the second respondent. In this way effectively only a part (5/12th) of the total FPPCA has been allowed provisionally during the FY 2009-10. Thus, the State Commission has also not revised the tariff w.e.f. 1.4.2009 and allowed the FPPCA Judgement in Appeal No.51 of 2010 prospectively according to Regulation 2.8.7.3. The State Commission has decided that the admissible amount on account of FPPCA for the period April-October 2009, will be considered while determining the FPPCA for the FY 2009-10.