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(a) Junagadh Power Projects Private Limtied Vs GUVNL & Ors (Full Bench Judgment dated 2.12.2013 in Appeals 132 and 133 of 2012) "29. In view of provisions of the Electricity Act, 2003, National Electricity Plan, Tariff Policy and the citations given above, we have come to the conclusion that the State Commission has powers to revise the tariff in a concluded PPA keeping in view the change in the circumstances of the case which are uncontrollable and revision in tariff is required to meet the objective of the Electricity Act. The State Commission has the duty to incentivise the generation of electricity from renewable sources of energy and if the renewable energy projects are facing closure of the plants on account of abnormal rise in price of the biomass fuel than what was envisaged by the State Commission while passing the generic tariff order applicable for a long period then the State Commission could revisit the fuel price to avert closure of such plants. However, in such an intervention, the State Commission has to balance the interest of the consumers as well as the generating company. In fact the State Commission has itself in the case of Abellon Clean Energy by order dated 7.2.2011 modified the tariff determined earlier in the generic tariff order dated 17.5.2010. In the order dated 17.5.2010, there was no separate tariff for biomass projects with air cooled condensers and a common tariff was decided irrespective of the type of cooling used. However, the State Commission re-

determined the tariff decided in order dated 17.5.2010 and allowed increase in tariff for biomass plants with air cooled condenser.

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31. Considering all the above factors, we feel that this is an appropriate case where the State Commission should examine and consider to re- determine the biomass fuel price. It should not be considered as a review of its earlier order dated 17.5.2010. In fact this should be considered as re- determination of tariff invoking the powers of the State Commission under the Electricity Act, 2003 to review the tariff in the circumstances of the case to avert closure of the biomass fuel based projects in the State."

113. The perusal of the Junagadh judgment would indicate that this Tribunal took cognizance of the subsequent fact such as closure and operation on an extremely low plant factor of biomass based projects due to high price of biomass fuel. In that case, the State Commission had determined the promotional generic tariff of biomass projects with some estimation of biomass fuel price for base year with an escalation factor for the biomass fuel price for the subsequent years for a period of 20 years even though it was specifically noted by the State Commission that no reliable date for biomass fuel prices was available with the Commission. However, the price of biomass fuel in the market reportedly increased substantially resulting in closure of biomass projects or operation at very low plant load factor. The price of biomass fuel was beyond the control of the project developers. Thus, the promotional tariff determined by the State Commission was not serving the desired purpose. The State Commission has been given the mandate under the Electricity Act to promote the renewable sources of energy and if such sources are facing threat of being closed down due to external and uncontrollable factor, then the State Commission has to exercise its regulatory powers. Therefore, it was necessary for the State Commission to take practical decisions which would help in ensuring existence of these renewable sources of energy rather than their extinguishment as alleged. Accordingly, the State Commission was directed to intervene and re-determine the biomass fuel price prospectively. It has been specifically held in the said judgment that the Appellant in that case were not requesting for revision in Return on Equity and Capital Cost of the project. In the present case, the Appellant is seeking for revision of capital cost etc after considering the actual capital cost and debt equity deployed for each project. Therefore, Junagarh case will be of no use to the Appellant.

132. In Junagarh judgment, this Tribunal taking cognizance of the subsequent development such as closure/ operation of biomass projects on extremely low plant factor due to high prices of biomass fuel in the market which is an external and uncontrollable factor directed the State Commission to re-determine the biomass fuel price prospectively to prevent closure of the renewable energy projects. In that case, the State Commission had determined the tariff with estimated escalation of biomass fuel but actually the bio mass fuel cost increased substantially resulting in closure/operation of the Power Plants at extremely low Plant Load factors.