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6. NTPC contended that the inability of its Generating Stations to achieve the target NAPAF of 85% during the relevant period was due to reasons beyond its control, primarily arising from the shortage of domestic _________________________________________________________________________ coal caused by policy decisions and directives of the Government of India restricting import of coal by public sector generating companies.
7. NTPC has submitted that it made regular and continuous representations to the Ministry of Coal, Ministry of Power, and Coal India Limited (CIL) to address the shortfall. A series of letters issued between October 2016 and November 2017 were placed before the CERC to demonstrate efforts made by NTPC to augment domestic coal supply and mitigate operational challenges and sought relaxation in the Normative Annual Plant Availability Factor ("NAPAF") the above mentioned Generating Stations for the period from 01.04.2017 to 31.03.2019 on account of the non-availability of coal and consider difference between NAPAF of 85 % and availability declared by referred NTPC generating stations as deemed for the purpose of computing fixed charges payable to NTPC. The Plant Availability achieved for these stations as reported by NTPC is given below FY Mouda, Mouda, Sholapur Simhadri, Stage I Stage I Stage II Plant Plant Plant Plant Availability Availability Availability Availability Factor (%) Factor (%) Factor (%) Factor (%) 2014- 83.45 - - 93.73 2015- 97.42 - - 94.05 2016- 94.98 - - 94.69 2017- 76.73 43.90 49.67 81.97 2018- 85.01 78.31 86.45 88.68

14. The present appeal stands on an identical legal and factual footing, as the generating stations in question were also unable to achieve the normative NAPAF of 85% due to a persistent shortfall in domestic coal availability, compounded by binding policy directives including the NCDP 2013, SHAKTI Policy, and the Ministry of Power instructions restricting coal imports by CPSU power producers, thereby deprived NTPC of any commercial or operational recourse to secure additional fuel.

15. With regard to the contentions of Respondent No. 3 - MSEDCL that the present case is governed by the principles laid down by this Tribunal in Appeal No. 110 of 2012, titled "NTPC Limited vs CERC & Ors.", wherein it was held that: (a) the coal shortage at Farakka and Kahalgaon- I arose solely because NTPC diverted linked coal to Kahalgaon-II after 2007-08; (b) despite using costly imported coal, NTPC could not meet NAPAF, and the diversion benefitted NTPC commercially while the beneficiaries suffered reduced power and higher costs; (c) the Regulations place full responsibility for fuel procurement on the generating company; and (d) non-availability of sufficient fuel due to the reasons cited by the Appellant does not fall within the scope of a Force Majeure event and accordingly responsibility for arranging fuel lies entirely with the generating company, i.e., NTPC, and the beneficiaries cannot be held accountable, learned Counsel submitted that referred judgement is inapplicable, as the case involved voluntary diversion of coal between _________________________________________________________________________ stations, constituting a commercial decision by the generator, and relief was denied because the generator itself altered the supply structure.

38. We note from the Minutes of Meeting chaired by the Secretary (Power) on 20.10.2015 regarding the QPR of NTPC, that at point no 3.6, with regard to the import of coal, CMD (NTPC) stated that imported coal receipts has been 6.4 MT till September 2015. In this context, "Secretary Power advised NTPC to consider the CEA target as an upper limit and try to minimise imports as far as possible".

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39. It is observed from the CEA OM dated 30.03.2015 that, for import of coal the target set for NTPC for the year 2015-16 is 22 MMT, against which only 6.4 MT (29%) was imported by NTPC till September 15 and Ministry of Power has only advised to reduce the import of power and to consider the limit set by CEA as upper limit. No information has been submitted by NTPC, that why ceiling limit so set by CEA, for import of coal was not utilised, when they were facing/envisaging shortage of domestic coal for meeting the NAPF for these projects in terms of the applicable Regulations. Thus, we are unable to agree with the contention of NTPC, that there was restriction for import of coal since 2015, which resulted in shortage of coal at these stations and NAPAF could not be achieved.

Quantity of imported coal received (Lakh Metric Ton) Station NTPC Simhadri Mouda Solapur Total 2014-15 164 25 7 Not Applicable 2015-16 95 22 1 (Unit-1 declared 2016-17 10 1 - CoD on 25th Sept'17) 2017-18 3 - - -
43. Learned Counsel on behalf of NTPC placing reliance on the judgment of the Hon'ble Supreme Court in "Kusum Ingots and Alloys v. Union of India"; (2004) 6 SCC 254, submitted that executive instructions are binding and enforceable, and therefore, cannot be disregarded by NTPC, rendering the situation a clear case of force majeure event. There is no dispute that the directions by a Minister are generally administrative instructions and it has been held in this judgement that such directions are binding internally on government officials, but these executive directions cannot create enforceable rights against third parties unless supported by law. In our view, such directions do not have statutory force unless backed by a law or formal government notification /order issued under statutory authority. The direction issued vide Minutes of Meeting may have binding internally on NTPC, however in our view the Appellant should have either _________________________________________________________________________ taken sufficient measures to safeguard its contractual obligations or sought for relaxation from such direction; and as deliberated above, Appellant has failed to establish the efforts in this regard. The referred judgement is of no avail to Appellant - NTPC.