JUDGMENT

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. In this appeal, assail is to the order dated 29.01.2020 passed by the 1^st respondent Central Electricity Regulatory Commission (hereinafter referred to as “the Commission”) in petition no.323/MP/2019 whereby the appellant has been held liable to pay late payment surcharge on the monthly transmission charges from August, 2017 to September, 2018 reflected in the revised bill/invoice dated 21.01.2019 raised by the 2^nd respondent Central Transmission Utility of India Limited (in short CTUIL) in pursuance to the order dated 06.11.2018 passed by the Commission in previous petition no.261/MP/2017.

2. A brief conspectus of the facts and circumstances of the case are narrated hereinbelow.

3. The appellant NTPC Limited is a generating company and is, inter alia, engaged in supply of electricity from its various generating stations in the country.

4. The appellant has developed a 2400MW (3x800MW) coal-based power station at Kudgi in the State of Karnataka (hereinafter referred to as the Kudgi TPS) and power generated in the said power station is being supplied to various beneficiaries in southern region through ISTS under Long Term Access (LTA) granted by the CTUIL with the corresponding liability to pay LTA charges for the same. The transmission system for providing transmission services to the long-term transmission customers of the appellant has been implemented by Kudgi Transmission Limited (in short KTL) which is a wholly owned subsidiary of L&T Infrastructure Development Projects Limited, under the tariff based competitive bidding process. Vide letter dated 17.01.2011, the Ministry of Power allocated electricity from the said Kudgi TPS as under: -

i. Karnataka (1196.24 MW);

ii. Kerala (119.18 MW);

iii. Tamil Nadu (300.10 MW); and

iv. Andhra Pradesh (418.10 MW).

5. The appellant entered into Power Purchase Agreements with the beneficiaries on various dates. In terms of clause 3.1 of the Power Purchase Agreements, the sale of power by appellant is at the busbar of the station and it is for the beneficiaries to make arrangements thereafter to deal with the ISTS licensees / PGCIL and arrange for transmission of power. Thus, the title of the power passed on to the beneficiaries at the busbar.

6. In terms of clause 3.2 of the Power Purchase Agreements, the appellant applied for LTA for Kudgi generating station on 15.04.2011 on behalf of the beneficiaries of the power station for a period of 25 years. Power Grid Corporation of India Limited (in short PGCIL) which was previously notified by the Government of India as Central Transmission Utility (CTU) under Section 38(1) of the Electricity Act, 2003, granted LTA to the appellant vide letter dated 23.12.2011.

7. Upon reorganization of State of Andhra Pradesh, the allocation of power from the Kudgi TPS done earlier vide letter dated 17.01.2011 required modification. Consequently, PGCIL notified the LTA granted to appellant vide letter dated 23.01.2015.

8. It appears that subsequently dispute arose between appellant and KTL with respect to delayed operationalization of the 400kV D/C Kudgi TPS and Narendra (New) Transmission Line (Element-I) and payment of transmission charges for the same which led to the filing of petition no.236/MP/2015 by KTL before the Commission. In the said petition, KTL had sought declaration of deemed Commercial Operation Date (COD) of the said line as 04.08.2015 and for payment of transmission charges for it from the said date. There was no dispute with regards to the Elements-II and III namely Narendra (New)- Madhugiri 765kV DC Line and Madhugiri-Bangalore 400kV DC Quad line respectively as the transmission charges for the same were being recovered through the PoC mechanism from their respective Commercial Operation Dates.

9. Vide order dated 27.06.2016 passed in the said petition, the Commission observed that due to non-availability of interconnection facility required to be developed by appellant and PGCIL at each end,