IN THE APPELLATE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

APPEAL NO. 257 OF 2015 Dated: 21^st March, 2024 Present: Hon’ble Mr. Justice Ramesh Ranganathan, Chairperson Hon’ble Smt. Seema Gupta, Technical Member (Electricity)

In the matter of:

M/s Jaiprakash Power Ventures Ltd.

Sector 128, Noida, Uttar Pradesh – 201 304. … Appellant(s)

VERSUS

1. Madhya Pradesh Electricity Regulatory Commission

5^th Floor, Metro Plaza, Arera Colony, Bittan market, Bhopal – 462 016 ... Respondent No.1

2. M. P. Power Management Co. Ltd.

Shakti Bhawan, Rampur, Jabalpur Madhya Pradesh ... Respondent No.2

3. M. P. Poorv Kshetra Vidyut Vitran Co. Ltd., Shakti Bhyawan, Rampur, Jabalpur Madhya Pradesh – 482 008. ... Respondent No.3

4. M. P. Madhya Kshetra Vidyut Vitran Co. Ltd.

Bijli Nagar Colony, Nishtha Parisar, Govindpura, Bhopal Madhya Pradesh – 462 023. ... Respondent No.4

5. M. P. Paschim Kshetra Vidyut Vitran Co. Ltd.

G.P.H. Compound, Polo Ground, Indore, Madhya Pradesh - 452015 ... Respondent No.5 Counsel on record for the Appellant(s) : Sakya Singha Chaudhuri Avijeet Lala Astha Sharma Shreya Dubey Nameeta Singh Karan Jaiswal Aryaman Singh Ravish Kumar Aparna Tiwari Shriya Gambhir Shreevidya Nargolka Counsel on record for the Respondent(s) : Parinay Deep Shah Mandakini Ghosh for Res.1 Alok Shankar Kumarjeet Ray for Res.2 J U D G M E N T (PER HON’BLE MR. JUSTICE RAMESH RANGANATHAN, CAIRPERSON)

I. INTRODUCTION:

The relief sought in this Appeal is to set aside the order passed by MPERC in Petition No. 37 of 2015 dated 12.08.2015; to declare that the additional levy payable by the Appellant to the fuel supply company is a statutory charge forming part of the landed cost of coal, and is thus liable to be reimbursed as part of energy (variable) charges; and to direct Respondent Nos. 2 to 5 to pay energy charges to the Appellant after having considered and including the Additional Levy as part of the landed cost of coal towards the invoices raised by the Appellant with interest.

The Appellant-JPVL is a power-generating company which procured coal from the Madhya Pradesh State Mineral Corporation Limited (“MPSMCL”), a State Government entity up to 31^st March 2015. The power plant was set up by them in view of the conditions imposed by MPSMCL for selection of a JV Partner, to utilize the coal mined from the Amelia (North) coal mine. On 05.01.2011, the Appellant and the 2^nd Respondent entered into the first long term PPA to supply 30% of the installed capacity from its 2x660 MW thermal power plant (“Project”) at the tariff determined by MPERC. On 06.09.2011, the Appellant entered into the second long term PPA with the 2^nd Respondent for supply of 7.5% of the net power from the Project at a variable cost to be determined by MPERC (collectively PPAs).

The Appellant filed Petition No.37 of 2015, under Regulation 41 of the MPERC (Terms & Conditions for determination of Generation Tariff) Regulations read with Section 86(1)(b) of the Electricity Act, 2003 seeking a declaration from MPERC that the “Additional Levy” raised on them by the fuel supply company, for supply of coal to their 1320 MW (2 X 660 MW) coal based power project at Nigrie, District Singrauli (M.P.), pursuant to the directions of the Supreme Court, in its Order in W.P.(Criminal) No.120 of 2012 dated 24.09.2014, is recoverable as variable (fuel) charges from the procurers, and to allow recovery of such additional levy from the Respondents.

As shall be elaborated hereinafter, MPERC, by the Impugned Order in Petition No. 37 of 2015 dated 12.08.2015, disallowed pass through of ‘Additional Levy’, as part of the generation tariff, holding that Additional Levy cannot be passed through as tariff and be borne by consumers of the State as (i) the Supreme Court, in its judgment in Writ Petition (Criminal) No. 120 of 2012 dated 24.09.2014, held that only beneficiaries of the flawed allotment process, i.e. the allottees would suffer the consequences of cancellation of coal block allotments; and (ii) Additional Levy can