APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI (APPELLATE JURISDICTION)

APPEAL NO. 329 OF 2019 &

IA NO. 1640 OF 2019 & IA NO. 828 OF 2020 Dated : 14^th July, 2021 PRESENT: HON’BLE MRS. JUSTICE MANJULA CHELLUR, CHAIRPERSON HON’BLE MR. RAVINDRA KUMAR VERMA, TECHNICAL MEMBER IN THE MATTER OF :

M/s Alps Industries Limited, 57/2, Industrial Area Sahibabad, Ghaziabad - 201010 .... APPELLANT Versus

1. Uttarakhand Electricity Regulatory Commission Through its Secretary Vidyut Niyamak Bhawan, Near I.S.B.T., P.O. Majra, Dehradun – 248171 Uttarakhand.

2. Uttarakhand Power Company Limited, Through its Chairman & Managing Director, Victoria Cross Vijeyta Gabar Singh Bhawan, Kanwali Road, Balliwala Chowk, Dehradun – 248001, Uttarakhand. .... RESPONDENTS Counsel for the Appellant(s) : Mr. Anand K. Ganesan Ms. Swapna Seshadri Mr. Adishree Chakraborty Mr. Damodar Solanki Counsel for the Respondent(s) : Mr. Buddy A. Ranganadhan Ms. Stuti Krishn Mr. Raunak Jain for R-1 Mr. Pradeep Misra for R-2

J U D G M E N T

PER HON’BLE MRS. JUSTICE MANJULA CHELLUR, CHAIRPERSON

1. The present Appeal is being filed under Section 111 of the Electricity Act, 2003 (for short “the Act”) against Order dated 05.08.2019 passed by the Uttarakhand Electricity Regulatory Commission (for short “UERC/State Commission”) in Petition No. 16 of 2019 whereby the State Commission has rejected the petition filed by the Appellant seeking refund of additional surcharge levied and recovered by Respondent No. 2 (distribution licensee) – Uttarakhand Power Company Limited (for short “UPCL”).

2. The facts that led to filing of this Appeal, in brief, are as under:

3. The Appellant - Alps Industries Limited is a company existing under the provisions of the Companies Act, 2013 having its registered office at 57/2, Industrial Area, Sahibabad, Ghaziabad – 201010. The Appellant is engaged in the business of textiles and has established two spinning mills at Haridwar in the State of Uttarakhand. The Appellant has two separate electricity connections with the Respondent No. 2 - distribution licensee and has taken the benefit of continuous power supply, in addition to procuring power under open access from the Indian Energy Exchange since June, 2013.

4. The Respondent No. 2 is the distribution licensee in the State of Uttarakhand and came into existence upon the division of the undivided State of Uttar Pradesh and creation of the State of Uttarakhand. The Respondent No. 2 - UPCL is responsible for distribution of electricity in the State of Uttarakhand and was also responsible for maintaining the transmission system of the state till the formation of the state transmission utility – Power Transmission Corporation of Uttarakhand Limited.

5. On 18.08.2011, the State Commission determined the levy of 15% surcharge on the applicable ‘Time of the Date’ energy charges, as additional surcharge under Section 42 (4) of the Electricity Act (for short “the Act”) for Open Access transaction and also determined the additional surcharge for the year 2011-12 (till 31.03.2012) based on the data for the year 2010-11.

6. On 23.05.2017, the State Commission initiated suo-moto Petition No.23 of 2017 wherein the State Commission held that the additional surcharge was allowed only for a limited period till 31.03.2012.

7. In March 2019, the Appellant preferred a separate petition No. 16 of 2019 before the State Commission seeking refund of the additional surcharge collected by Respondent No.2.

8. On 14.05.2019, the Appellant filed a note of arguments and on 15.06.2019, Respondent No.2 file reply wherein it was stated that the Petition was beyond the jurisdiction of the State Commission, the petition was barred by limitation and also that the charges were as approved by the State Commission. On 21.06.2019, the Appellant filed rejoinder to the reply.

9. On 05.08.2019, UERC passed the impugned order.

10. According to Appellant, the State Commission has grossly erred in proceeding on irrelevant basis of the nature of adjustment of amount