TAMIL NADU GENERATION Vs. PENNA ELECTRICITY LIMITED

JUDGEMENT

(1.) The present appeal calls in question the correctness of the judgment and order dtd. 10/7/2013 passed by the Appellate Tribunal for Electricity (for short 'APTEL') in Appeal No.112 of 2012.

(2.) The Tamil Nadu Electricity Regulatory Commission (for short 'TNERC') and the APTEL have concurrently found in favour of the respondent. It has been held that the power generated by the respondent by the open cycle gas turbine for the period from 29/10/2005 to 30/6/2006 (hereinafter called as 'Relevant Period') and supplied to the appellant could not be termed as "infirm power" and that it could only be treated as "firm power". The consequence of the said finding was that the Commercial Operation Date (for short the 'COD') for the Gas Turbine in Open Cyc006Ce was held to be 29/10/2005 (i.e. the synchronization date) and since power was delivered on a continuous basis, the appellant was ordered to pay fixed charges for the relevant period.

(3.) Aggrieved, the appellant is in appeal. The principal argument is that any sale of electricity prior to "COD" would be infirm power and would entail the supplier only to variable charges i.e., the cost of the fuel. To support this, the appellant relies on the clause in the Power Purchase Agreement (for short 'PPA') originally entered on 29/4/1998 and undisputedly amended on 25/8/2004. According to the appellant, under the PPA, as amended, date of commercial operation was the day on which the project achieved entry into commercial operation i.e., 1/7/2006.