IN THE APPELLA TE TRIBUNAL FOR ELECTRICITY (Appellate Jurisdiction)

Appeal No. 186 of 2020 Dated: 30^th November, 2021 Present: Hon’ble Mr. Justice R.K. Gauba, Judicial Member Hon’ble Mr. Sandesh Kumar Sharma, Technical Member In the matter of:

1. NESCO Utility Through Executive Engineer (Electrical), Jajpur Road Electrical Division, Odisha - 75501 .… Appellant (s)

Versus

1. M/s. Jindal Stainless Limited Through Senior Manager (Legal), Kalinga Nagar Industrial Complex, PO: Danagadi, District - Jajpur Odisha - 755026 .… Respondent No.1

2. Odisha Electricity Regulatory Commission Through Registrar Plot No. 4, Chunukoli, SaileshreeVihar, …. Respondent No.2 Chandrasekharpur, Bhubaneswar-751021 Odisha Counsel on record for the Appellant(s): Mr. SajanPoovayya, Sr. Adv.

Mr. Anand Kumar Shrivastava Ms. Raksha Agarwa Ms. Anuja Jain Mr. Utkarsh Khandelwal Counsel on record for the Respondent(s): Mr. K. Gopal Choudhary Mr. Hitendra Nath Rath for R-1 Mr. Rutwik Panda Ms. Nikhar Berry Ms. Anshu Malik for R-2 JUDGMENT (ORAL)

Per Hon’ble Mr. Justice R.K. Gauba, Judicial Member:

1. The matter has been taken up by video conference mode on account of pandemic conditions, it being not advisable to hold physical hearing.

2. The Appeal at hand was presented by the Distribution Licensee, earlier known as NESCO Utility, since vested in TP Northern Odisha Distribution Limited (TPNODL) – the change in the description of appellant allowed by separate short order of even date (on IA no. 1836 of 2021), the appellant carrying on the function of distribution of electricity in Northern and North-Eastern Odisha. The first Respondent – Jindal Stainless Limited (for short, “JSL”), operates and maintains an integrated steel manufacturing plant at Kalinga Nagar Industrial Complex, Jajpur Road, Odisha, operating and maintaining a 2x125 MW Captive Generating Plant (CGP) and also drawing electricity from the appellant.

3. The Appeal is directed against order dated 26.02.2018 passed by Odisha Electricity Regulatory Commission (OERC or the State Commission) directing the transaction of supply of electricity by the Appellant herein to the first Respondent/JSL for the period 01.07.2012 to 31.07.2015 to fall in the category of “Emergency Supply of CGP” under Regulation 80 (15) of OERC Distribution (Conditions of Supply) Code, 2014 (hereinafter referred to as “the Supply Code”). The Appellant had earlier approached the jurisdictional High Court invoking its writ jurisdiction, but withdrew from there having taken liberty to approach this Tribunal by Appeal which was filed subsequently.

4. The controversy which continues to rage between the parties pertains to certain provisions of the Supply Code, the relevant parts whereof, to the extent referred during the submissions before us, may be noted as under:

“80. Licensee may classify or reclassify the consumer into various categories from time to time as may be approved by the Commission and fix different tariffs and conditions of supply for different class of consumers. The present classification is as follows: -

“...

(10)Large Industries This category relates to supply of power to industries with a contract demand of 110 KVA and above but below 25000 KVA, where power is substantially utilised as motive force for industrial production.

(11)Heavy Industries This category relates to supply of power to industries with a contract demand of 25000 KVA and above where power is substantially utilised as a motive force.

…

(15)Industries owning Generating Stations and Captive Power Plants availing Emergency Supply only This category relates to supply of power to industries with generating stations including Captive Power Plants only for start-up of the unit or to meet their essential auxiliary and survival requirements in the event of the failure of their generation capacity. Such emergency assistance shall be limited to 100 % of the rated capacity of the largest unit in the Captive Power Plant of Generating Stations …

Reclassification of Consumer

82. I