BSES RAJDHANI POWER LTD Vs. CENTRAL ELECTRICITY REGULATORY

JUDGEMENT

(1.) THE IA Nos. 171 of 2012 in Appeal No.82 of 2012 and 183 of 2012 in Appeal no.90 of 2012 have been filed by BSES Rajdhani Power Ld and BSES Yamuna Power Ltd. respectively praying for grant of an interim stay of retrospective levy of tariff by NTPC Ltd., National Hydro Power Corporation Ltd. and Power Grid Corporation of India Ltd., Respondents 2 to 4 herein, pursuant to provisional tariff orders passed by the Central Electricity Regulatory Commission ("Central Commission") in July/August, 2011 under Regulation 5(4) of the Tariff Regulations, 2009.

(2.) THE Petitioners/Appellants are the distribution licensees operating in NCT of Delhi. The Respondent no.1 is the Central Commission. The Respondent nos.2 and 3 are the Central Sector generating companies. The Respondent no.4 is the transmission licensee.

(3.) THE brief facts of the case are as under: 4.1 The Tariff Regulations, 2009 notified by the Central Commission came into effect from 01.04.2009. These Regulations were amended on 02.05.2011 and 21.06.2011. The Regulations, as amended, have a provision that the existing projects shall continue to provisionally bill the Page no. 4 of 12 IA No. 171 of 2012 in Appeal No.82 of 2012 & IA No. 183 of 2012 in Appeal no.90 of 2012 beneficiaries with the tariff approved by the Central Commission as applicable on 31.03.2009 for the period starting from 01.04.2009 till the approval of tariff by the Commission in accordance with the 2009 Tariff Regulations. It also provides that where application for determination of tariff of an existing or a new project has been filed before the Commission in accordance with the Regulations, the Commission may consider to grant provisional tariff upto 95% of the annual fixed cost of the project claimed by the applicant, subject to adjustment after the final tariff order has been issued. 4.2 Provisional Tariff orders for NTPC Stations were issued by the Central Commission between 06.07.2011 and 12.08.2011 for different power projects. Pursuant to these orders, the Respondent issued invoices to the Appellants for recovery of dues for the period April, 2009 to July, 2011. 4.3 On 01.09.2011, the Appellants filed petitions before the Central Commission seeking certain reliefs in respect of Page no. 5 of 12 IA No. 171 of 2012 in Appeal No.82 of 2012 & IA No. 183 of 2012 in Appeal no.90 of 2012 claims of Respondents nos. 2 to 4 including the retrospective recovery of arrears with interest w.e.f. 01.04.2009 for provisional tariff decided by the Central Commission under Regulation 5(4). 4.4 The Central Commission passed the impugned order dated 26.03.2012, inter alia rejecting the plea of the Appellants regarding claim of arrears from 01.04.2009 based on the provisional tariff determined by the Central Commission. 4.5 As against this order, the Appellant have filed these Appeals. In the Interim Applications the Appellants have requested for interim stay of the operation of this order only with regard to the issue of retrospective recovery of provisional tariff w.e.f. 01.04.2009 by Respondents nos. 2 to 4.