IMPORTANT POINT
Regulation 3(12) OF Central Electricity Regulatory Commission (Terms & Conditions of Tariff) Regulations, 2009 cannot be interpreted against the spirit of the definition of “transmission lines” in section 2(72) of the Electricity Act, 2003..

JUDGMENT :

Prafulla C. Pant, J.

These appeals preferred under section 125 of Electricity Act, 2003 are directed against orders dated 02.07.2012 and 08.11.2012 respectively, passed by Appellate Tribunal for Electricity, New Delhi (for short “the Tribunal”), whereby Appeal No. 123 of 2011 was allowed and Review Petition No. 09 of 2012 filed against that order was dismissed by the Tribunal, and matter was remanded back to Central Electricity Regulatory Commission (CERC) for re-determination of date of commercial operations (COD) of 400 KV Barh-Balia double circuit transmission?

2. The issue involved in the present case is as to:-

Whether the new transmission line charged from one end by the transmission licensee without switchgear, protection system and metering arrangement (not in the scope of works of the transmission licensee) at the other end could not have been commissioned for the purpose of raising transmission charges against the beneficiaries in the light of second Proviso to clause (c) of Regulation 2 of Central Electricity Regulatory Commission (Terms & Conditions of Tariff) Regulations, 2009 (for short “Regulations, 2009”)?

3. We have heard Learned Counsel for the parties and perused the papers on record.

4. Brief facts of the case are that appellant Power Grid Corporation of India (for short “Power Grid”) is a transmission licensee who constructed 400 KV Barh-Balia double circuit transmission. Punjab State Power Corporation Ltd. (respondent No. 1) is one of the beneficiaries who is a successor-in-interest of Punjab State Electricity Board. Appellant had entered into contractual agreement, i.e Bulk Power Transmission Agreement with respondent No. 1 and other beneficiaries for providing the service of transmission lines. National Thermal Power Corporation (NTPC) was constructing a Super Thermal Power Station at Barh in the State of Bihar. The construction of the Sub-station including the switchgear and protection system at the Barh end was within the scope of work undertaken by NTPC. It is pleaded by the appellant that it had duly constructed and completed the work assigned to it by 30th June, 2010. It is further pleaded that the line was duly charged with all reactors and battery chargers in service and auxiliary supply was available and the system was running.

5. On 01-10-2010 the appellant filed a petition (No. 267 of 2010) before CERC for determination of transmission tariff for the period from 01-07-2010 to 31-03-2014. Admittedly the petition was heard by CERC on 25-01-2011, and till that date respondent No. 1 had not raised any objection. The matter was reserved for the Judgment. Thereafter, respondent No. 1 appears to have filed an affidavit stating that that line was not operational. CERC, vide order dated 29-04-2011 decided the tariff for Barh-Balia line w.e.f 01-07-2010, payable by beneficiaries. Aggrieved by said order respondent No. 1 filed the appeal (No. 123 of 2011) before the Tribunal and pleaded that since condition of trial operation and regulatory services were not fulfilled, as such, the Central Commission erred in declaring the tariff w.e.f. 01-07-2010. The Tribunal accepted the plea of respondent No. 1, and remanded the matter. Hence, these appeals.

6. Before further discussion we think it just and proper to quote the relevant provision contained in Regulations, 2009 for the just decision of the case. Clause (12) of Regulation 3 defines ‘date of commercial operation’ (COD) as under:-

“(12). ‘Date of Commercial Operation’ of ‘COD’ means :

(a)In relation to a unit or block of the thermal generating station, the date declared by the generating company after demonstrating the maximum continuous rating (MCR) or the installed capacity (IC) through a successful trial run after notice

(b)to the beneficiaries, from 0000 hour of which scheduling process as per the Indian Electricity Grid Code (IEGC) is fully implemented, and in relation to the generating station as a whole, the date of commercial operation of