JUDGMENT

PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER

1. The Appellant – M/s Korba Power Limited previously known as (M/s Lanco Amarkantak Power Limited) is aggrieved by the order dated 8^th August, 2022 passed by 1^st Respondent – Chhattisgarh State Electricity Regulatory Commission (hereinafter referred to as “the Commission”) thereby determining tariff for the Appellant’s thermal power project having the capacity of 600 MW in District Korba Chattisgarh for the Financial Year 2011-12 i.e. for the period from 22^nd June, 2011 to 31^st March, 2012 and Financial Year 2012-13 i.e. for the period from 1^st April, 2012 to 1^st October, 2013 for the power generated from Unit-II of the said power project. The Appellant is assailing the said tariff order of the Commission to the extent it has granted carrying cost to the Appellant only w.e.f. 3^rd October, 2019 for the power supplied by appellant to 2^nd Respondent during the Financial Year 2011-12 and also to the extent that carrying cost w.e.f. 3^rd October, 2019 has been granted in line with the computation done by the Commission while passing the tariff orders for the state power companies.

2. The Appellant is a generating company within the meaning the said term in Section 2(23) of Electricity Act, 2003 and is operating the 600 MW coal based thermal power project in District Korba comprising two units of 300 MW each. The instant appeal pertains to Unit-II of the plant.

3. The Respondent No. 2 – Chhattisgarh State Power Training Company Limited is a deemed trading licensee and is authorized representative of Government of Chhattisgarh to execute Power Purchase Agreement (PPA) with the independent power producers as well as to sell the power so contracted on behalf of the Government. The 3rdRespondent Chhattisgarh State Power Distribution Company Ltd. is a Distribution Licensee in the State of Chhattisgarh.

4. In pursuance to a tripartite memorandum of understanding dated 17^th September, 2008 and Implementation Agreement dated 1^st August, 2009 executed between the Appellant, Government of Chhattisgarh and the 3^rd Respondent, Power Purchase Agreement dated 12^th January, 2011 was entered into between the Appellant and the 2^nd Respondent for supply of 35% power from Unit-II of the Appellant’s aforesaid power plant at a tariff to be approved by the Commission.

5. On the basis of the said Implementation Agreement and the PPA, this Tribunal vide order dated 23^rd March, 2011 passed in Appeal No. 15 of 2011 had directed the Appellant to supply 35% power to 2^nd Respondent and the balance 65% power to Haryana Discoms through PTC. It would be pertinent to state here that the said order of this Tribunal was made absolute vide final order dated 4^th November, 2011 passed in the said appeal and was even continued by the Hon’ble Supreme Court vide interim order dated 16^th December, 2011 passed in Civil Appeal No. 10239 of 2011. Accordingly, pursuant to the aforesaid order dated 23^rd March, 2011 of this Tribunal, the Appellant commenced supply of power to 2^nd Respondent from 22^nd June, 2011 and continued the supply till 1^st October, 2012 when the 2^nd Respondent itself stopped scheduling of power from Unit-II of the Appellant’s power project.

6. It appears that the 2^nd Respondent had decided to release payments to the Appellant at a flat rate of Rs.2.85 per kwh or actual tariff rate whichever was lower. The tariff rate was not acceptable to the Appellant and accordingly it filed petition No. 48 of 2012 before the Commission seeking adjudication of the dispute between it and 2^nd Respondent under Section 86(1)(f) of the Electricity Act, 2003. However, the petition came to be rejected by the Commission vide order dated 30^th December, 2014 holding that the disputes in relation to tariff could not be resolved without determination of tariff.

7. Accordingly, the Appellant approached the Commission again by way of Petition No. 18 of 2018 under Section 86(1)(a) read with Section 62 and 64(5) of the Electricity Act, 2003