JUDGEMENT

PER HON’BLE MR. SANDESH KUMAR SHARMA, TECHNICAL MEMBER

1. Damodar Valley Power Consumers Association and Shree Ambey Ispat Pvt. Ltd. (in short “Appellants” or “DVPCA” & “AIPL”) have filed the present batch of appeals challenging the following Impugned Orders passed by the West Bengal Electricity Regulatory Commission (in short “State Commission” or “WBERC”):

Description of the Parties

2. The Appellant No. 1 is a company incorporated under Section 8 of the Companies Act, 1956, with the object “to promote, protect and safeguard the rights, interests of electricity consumers in Eastern India by every legitimate means”. Appellant No. 1 is a collective body representing the interests of its members who are HT consumers of DVC.

3. The Appellant No. 2 is a company incorporated under the provisions of the Companies Act, 1956, and is principally engaged in the manufacture of ferro-alloys. Appellant No. 2 is an HT consumer of DVC and is also a member of Appellant No. 1.

4. Respondent No. 1, West Bengal Electricity Regulatory Commission, is a statutory body under Section 82 of the Electricity Act, 2003. The State Commission is entrusted with the function of determination of tariff for retail supply of tariff within the State of West Bengal.

5. Respondent No. 2, Damodar Valley Corporation, is a statutory corporation owned and controlled by the Government of India, Government of Jharkhand and Government of West Bengal. DVC was constituted pursuant to the Damodar Valley Corporation Act, 1948, and qualifies as a “State” within Article 12 of the Constitution of India with all its attendant obligations of reasonableness and propriety in the conduct of its affairs. DVC is engaged in the generation, transmission, bulk supply, and distribution of electricity and performs diverse functions relating to irrigation, flood control, afforestation, soil conservation, etc., in accordance with the provisions of the DVC Act.

6. The issues involved in the batch of appeals are identical in nature. Therefore, we decided to adjudicate the complete batch with Appeal No. 275 of 2015 as the lead appeal.

Facts of the Case(s) (Appeal No.275 of 2015) (as submitted)

7. DVC owns and operates the following generation assets:

8. Prior to the enactment of the Electricity Act, 2003, DVC was authorised to determine its own tariff pursuant to Section 20 of the DVC Act, 1948.

9. The relevant extract from Section 20 of the DVC Act is as follows:

“20. Charges for supply of electrical energy - The Corporation shall fix the schedule of charges for the supply of electrical energy, including the rates for bulk supply and redistribution, and specify the manner of recovery of such charges”

10. Upon enactment of the Electricity Act, 2003, the above-noted dispensation under the DVC Act underwent a significant change. The 2003 Act, being a consolidating Act, prevailed over such provisions of the DVC Act as were inconsistent with its own provisions.

11. In light of the statutory scheme under the Electricity Act, 2003, the CERC, initiated suo motu proceedings (Petition No. 168 of 2004) with respect to DVC's tariff determination. Vide its order dated 29.03.2005, the CERC directed DVC to file an application for the determination of its tariff.

12. In response to CERC's direction, DVC filed Petition No. 66 of 2005 on 08.06.2005 before the CERC, seeking tariff determination for the MYT period 01.04.2004 to 31.03.2009.

13. After a detailed exercise, the CERC, vide tariff order dated 03.10.2006, determined DVC's generation and transmission tariff and made the same applicable from 2006-09. In other words, DVC was granted a two-year moratorium from 01.04.2004 to 31.03.2006 during which it could continue to levy and recover its own tariff. In other words, the tariff fixed by CERC became applicable from 01.04.2006.

14. In its tariff order dated 03.10.2006, the CERC specifically pointed out that it has confined itself to the determination of the generation and transmission tariff of DVC, and that the distr