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23. The facts of RASNA case are: that Rasna, a power producer, entered into a power purchase agreement on 8.12.2010 with the appellant (GUVNL) herein. Under the said PPA, Rasna agreed to sell power at the rate prescribed by the 1st Tariff Order. Eventually, Rasna commissioned its power plant on 31.12.2011 within the control period stipulated in the 1st Tariff Order. However, Rasna filed a petition before the 2nd respondent praying for determination of specific tariff for the sale of power on the ground that Rasna would not be availing accelerated depreciation benefits.

The said application of Rasna was resisted by the GUVNL. A preliminary objection that such an application is not maintainable was raised by GUVNL on the ground that Rasna having received the benefit of the PPA and also the payment pursuant thereto is debarred from seeking the relief such as the one sought by it. The 2nd respondent overruled the preliminary objection. Therefore, GUVNL went before the appellate tribunal. Dealing with the said appeal, the Tribunal took note of the categoric objection raised by the GUVNL that the application for determination of a separate tariff by Rasna could not be entertained after Rasna had signed the PPA.[12]

24. The Tribunal rejected the said objection of GUVNL.[13] In substance, the conclusion of the Tribunal in RASNA case was that the execution of the PPA does not put any embargo on the right of Rasna to seek the determination of a specific tariff. The tribunal’s reasons for such a conclusion are that (i) the 1st Tariff Order recognises the right of the power producers like Rasna either to opt for or not to opt for the benefit of accelerated depreciation; (ii) there is no specific stipulation in the Tariff Order that the power producers like Rasna which do not wish to avail the benefit of accelerated depreciation should intimate the same to the appellant before entering into the PPA; (iii) nor there is any obligation under any law by which Rasna is bound to disclose the fact before signing the PPA that it would not avail the benefit of accelerated depreciation.

25. Relying on the judgment of the RASNA case, the Tribunal recorded a conclusion in the impugned order:

“32. In the present case, the Solar Project could not be commissioned during the control period specified in the State Commission’s Order dated 29.1.2010. Therefore, in terms of the PPA, the Respondent No.1 is entitled to tariff as determined by the State Commission in the subsequent order dated 27.1.2012.” We do not wish to make any comment on the correctness of the order of the tribunal in RASNA case. We are not sure whether the order has become final. But we are of the opinion that the reliance by the tribunal in the instant case on RASNA case order is clearly wrong. In RASNA case, the prayer was for the determination of a separate tariff applicable to it. In the instant case, the prayer of the 1st respondent is not for fixation of separate tariff but for a declaration that the 1st respondent is entitled for claiming the benefits of the tariff determined under the 2nd Tariff Order.