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(h) In that order, the State Commission observed that the issue of cross subsidy surcharge and regulatory assets would be decided separately in future.

APPEAL NO.294 OF 2013, APPEAL NO.299 OF 2013, APPEAL No.331 OF 2013 AND

(i) Thereupon, after a few months, the Reliance filed Case No.7 of 2010 on 27.4.2010 praying for appropriate mechanism for recovery of loss of cross subsidy surcharge as well as past year's Revenue gaps from consumers who choose to migrate to the other Licensee.

76. The next issue is Regulatory Assets Charges.

77. Let us now refer to the issue with regard to the Regulatory Asset Charge. On this issue, the Appellants have made the following arguments.

a) Regulatory Asset Charge on Open Access Consumers is illegal;

b) The Consumers who had migrated from Reliance to Tata Power have been slammed with Regulatory APPEAL NO.294 OF 2013, APPEAL NO.299 OF 2013, APPEAL No.331 OF 2013 AND Asset Charge after they so migrated, which is clearly illegal;

(ii) The tariffs for 2009-10 were fixed by the State Commission through the tariff Order dated 15.6.2009, by changing the previous years tariff of certain categories of consumers of Reliance. However, by an Order dated 15.7.2009, the State Commission stayed the said change. Subsequently, the State Commission vacated the stay after 15 months. The loss of recovery and the consequent recovery in the ARR of Reliance by virtue of ex parte stay, resulted in the creation of regulatory assets.

(iii) The State Commission by the Order dated 15.10.2009 had allowed the migration of consumers from Reliance to Tata Power on network of Reliance for supply from Tata Power. Migration of consumers commencing from November 2009 allowed by the State Commission, caused a significant loss of high APPEAL NO.294 OF 2013, APPEAL NO.299 OF 2013, APPEAL No.331 OF 2013 AND paying consumers from the fold of Reliance leading to under recovery of revenue.

d) However, the present situation is not a 'business-as-

usual' situation, and is one of the few instances in the country where parallel licensees are operating in the same area of supply and consumers have the right to migrate from one licensee to another. The migration has been facilitated by the above-referred Commission's Interim Order dated October 15, 2009, which was based on the Judgment of the Hon'ble Supreme Court of India dated July 8, 2008 in Civil Appeal No. 2898 of 2006 with Civil Appeal Nos. 3466 and 3467 of 2006, wherein the Hon'ble Supreme Court ruled as under: