JUDGMENT

Surinder Singh Nijjar, J. —

1.In these two appeals the appellants are aggrieved by the order passed by the Appellate Tribunal for Electricity (hereinafter referred to as ‘the Tribunal’) in Appeal No.3/2007 dated October 31, 2007. The present Appeal No. 805 of 2008 is at the instance of West Bengal Electricity Regulatory Commission (hereinafter referred to as ‘the Commission’). Appeal No.3341/2008 has been filed by the Calcutta Electricity and Supply Company Limited (hereinafter referred to as ‘CESC’).

2.We propose to decide the two appeals by this common judgment as they arise out of the aforesaid common order passed by the Tribunal.

3.The controversy between the parties revolves around the methodology, criteria/formula that has to be applied in determining the wheeling charges in accordance with the applicable Rregulations framed under the Electricity Act 2003.

4.We may notice here the skeletal facts which are necessary for the purpose of disposal of these two appeals. HINDALCO Industries Limited, formerly known as Indian Aluminum Company Limited (hereinafter referred to as respondent No.1) has an aluminum and copper products factory at Belurmath in West Bengal within the distribution licence area of CESC. It had an existing Contract Demand Agreement for 8.5 MW with CESC drawing power at the voltage of 33 KV through dedicated lines from the Belurmath receiving Sub-Station of CESC. For this purpose, respondent No.1 has installed a 33 KV Sub-Station at its premises. It has a captive power plant at Hirakud, Orissa. On 31.10.2003 respondents filed an application under Section 9 and 42 of the Electricity Act, 2003 before the Commission seeking permission for open access to wheel surplus captive power of an approximately 9 MW from its power plant to its Belur factory. The distance between the captive power plant at Hirakud, Orissa and Belurmath plant in West Bengal is about 555 kilometers, out of which 550 kilometers falls within the jurisdiction of West Bengal State Electricity Board (for short WBSEB), OPTCL and Eastern Region. We may also notice here that out of these five kilometers, respondent No.1 had at its own cost put up 2 kilometers long dedicated transmission line, thus using only 3 kilometers of the CESC network. Respondent No.1 paid wheeling charges for transmission of power at the rate of 9.57 paise per unit for 550 kilometers. However, in respect of remaining five kilometers, which also fall within the State of West Bengal, respondent No.1 has to pay wheeling charges at the rate of 83.54 paise/kWh as fixed by the Appellate Commission by its order dated 21.11.2005. In its order dated 21.11.2005 the Commission had observed as follows:

“26.0 Thereafter, actual of working of open access should follow, naturally depending-upon availability of capacity as laid down in the Regulations on open access. Payments of various charges / fees should follow the provisions of the Regulations dealing with fees, charges and formats. There are still two items on which specific orders from the Commission will be required. The first one concerns the quantum / rate of additional surcharge, while the second one concerns the wheeling charge which will have to be determined by the Commission in terms of Regulation 14.3(b) and Regulation 14.5(b) respectively of the West Bengal Electricity Regulatory Commission (Terms and Conditions for Open Access) Regulations, 2005. We have since determined the wheeling charges applicable to CESC Limited for the year 2005-06 based on factors like distribution network cost, units saleable by the distribution licensee to its consumers, units to be wheeled by the open access customer etc. and the same has worked out to 83.54 paise per kWh. This will be revised appropriately, needless to add, by the Commission every year.”

5.Aggrieved by the aforesaid order, respondent No.1 challenged the same before the Tribunal by way of an appeal being Appeal No.1/2006. The aforesaid appeal was allowed by the Tribunal by it