IMPORTANT POINT
Captive consumers / captive users are not liable to pay additional surcharge under Section 42(4) of Electricity Act, 2003 – Consumers defined under Section 2(15) of Electricity Act, 2003 and captive consumers are different and distinct and they form a separate class by themselves.

JUDGMENT

M.R. Shah, J.

Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Appellate Tribunal for Electricity, Delhi in Appeal Nos. 311 and 315 of 2018 whereby the Appellate Tribunal has allowed the said appeals preferred by the respondents herein - the 'captive consumers' and has set aside the order passed by the Maharashtra Electricity Regulatory Commission (hereinafter referred to as the "State Commission") in Petition No. 195 of 2017 by which the State Commission has held that the group of 'captive consumers' are liable to pay additional surcharge, Maharashtra State Electricity Distribution Company Limited (hereinafter referred to as the "distribution licensee"), has preferred the present appeals.

2. That the appellant as distribution licensee filed a petition before the State Commission for MYT approval for FY 2014-2015, provisional truing up of ARR for FY 2015-2016 and Multi Year Tariff for 3rd Control Period FY 2016-2017 to FY 2019-2020. The said petition was numbered as Case No.48 of 2016. The State Commission held that the additional surcharge leviable under Section 42(4) of the Electricity Act, 2003 (hereinafter referred to as the "Act, 2003") is not applicable to captive users to the extent of their self-consumption from such plants. The State Commission also held that the additional surcharge shall be applicable to all consumers who have availed open access to receive supply from sources other than the distribution licensee to which they are connected.

3. The appellant - distribution licensee submitted its revised Review Petition being Case No.195 of 2017, for approval of final true up of ARR for FY 2015-2016 and 2016-2017, provisional true up of ARR for FY 2017-2018 and approval for revised forecast of ARR for FY 2018-2019 and 2019-2020, inter alia, including the prayer "to approve additional surcharge for all open access consumers including those sourcing power from CPPS as proposed for FY 2018-2019 to FY 2019-2020". The Captive Power Producers Association filed their objections including the objections with respect to levy of additional surcharge on such captive users. That by order dated 12.09.2018, the State Commission passed the order holding that additional surcharge is leviable under Section 42(4) of the Act, 2003 on the captive consumers/captive users.

4. Feeling aggrieved and dissatisfied with the order passed by the State Commission allowing the levy of additional surcharge from the captive consumers/captive users, the respondents herein - captive users/captive consumers approached the Appellate Tribunal. By impugned order dated 27.03.2019, the Appellate Tribunal has allowed the said appeals and has set aside the order passed by the State Commission ordering/permitting to levy the additional surcharge leviable under Section 42(4) of the Act, 2003 and has held that the group of captive consumers are not liable to pay additional surcharge to the distribution licensee.

5. Feeling aggrieved and dissatisfied with the impugned order passed by the Appellate Tribunal holding that the group of captive consumers/captive users are not liable to pay the additional surcharge leviable under section 42(4) of the Act, 2003, appellant - distribution licensee.

6. We have heard the learned counsel appearing for the appellant -distribution licensee as well as learned counsel appearing on behalf of the respective respondents - intervenors - the captive consumers/captive users at length.

7. The short question which is posed for the consideration of this Court is:

"Whether the captive consumers/captive users are liable to pay the additional surcharge leviable under Section 42(4) of the Electricity Act, 2003?

8. While deciding the aforesaid issue/question, the relevant provisions of Electricity Act, 2003 namely Sections 9 and 42 are required to be noted/visited, which reads as under:-

"9. Captive generation - (1) Notwithstanding anything contained in this Act, a person may construct, maintain or operate