APPELLATE TRIBUNAL FOR ELECTRICITY AT NEW DELHI (APPELLATE JURISDICTION)

APPEAL NO. 134 OF 2024 & IA NO. 350 OF 2024 Dated: 27^th March, 2025 Present: Hon’ble Mr. Justice Ramesh Ranganathan, Chairperson Hon’ble Ms. Seema Gupta, Technical Member (Electricity)

In the matter of:

NUCLEAR POWER CORPORATION OF INDIA

16^th Floor, Centre-1, World Trade Centre, Cuffee Parade, Mumbai, PIN – 400005. … Appellant VERSUS

1. CENTRAL ELECTRICITY REGULATORY COMMISSION Represented by its Secretary

3^rd & 4^th Floor, Chanderlok Building, 36, Janpath, New Delhi – 110001. … Respondent No.1

2. GUJARAT URJA VIKAS NIGAM LIMITED Through its Managing Director Sardar Patel Vidyut Bhavan, Race Course, Vadodara – 390007, Gujarat. … Respondent No.2 Counsel for the Appellant(s): Tavinder Pal Sidhu A. P. Singh Neetica Sharma Akshada Shrinkhla Tiwari Counsel for the Respondent(s): Ranjitha Ramachandran Anand K. Ganesan Swapna Seshadri Srishti Khindaria Kriti Soni for Res.2 JUDGEMENT PER HON’BLE MR. JUSTICE RAMESH RANGANATHAN, CHAIRPERSON I. INTRODUCTION:

This Appeal is preferred by Nuclear Power Corporation of India Limited (hereinafter referred to as the “Appellant”) against the interim order passed by the Central Electricity Regulatory Commission (“CERC” for short) in Petition No. 98/MP/2023 dated 13.01.2024. The relief sought for in the present Appeal is to set aside the said interim order.

In the Impugned Order, the CERC has, after construing the provisions of the Atomic Energy Act, 1962 (the “1962 Act”) and the Electricity Act, 2003 (the “2003 Act”), held that the Commission had jurisdiction, under Section 79(1)(f), to adjudicate disputes, between the 2^nd Respondent-Gujarat Urja Vikas Nigam Limited (GUVNL), the licensee procuring electricity, and the Appellant-Nuclear Power Corporation of India Limited (NPCIL), the generating company supplying electricity, under the two PPAs dated 22.09.2005 and 16.12.2008, from Kakrapar Atomic Power Station-KAPS Unit and Tarapur Atomic Power Station- TAPS Unit.

The question, which necessitates examination in the present Appeal, is whether the CERC is vested with the jurisdiction and functions under Section 79(1)(f) of the Electricity Act, 2003 to adjudicate disputes, between the Appellant- NPCIL and the Respondent- GUVNL, relating to the effective tax rate on Return on Equity applicable under the Tariff Notification dated 08.02.2012, and other notifications of the Central Government (Department of Atomic Energy (DAE)). The Appellant and the 2^nd Respondent had entered into a Power Purchase Agreement on 22.09.2005 for supply of 125 MW capacity of power from the Appellant’s Kakrapur Atomic Power Stations Units

1 and 2, and 274 MW capacity of power from their Tarapur Atomic Power Station Units 3 and 4. They also entered into a Power Purchase Agreement dated 16.12.2008 for supply of power from the Tarapur Atomic Power Station Units 1 and 2 for the allocated capacity of 160 MW of power. The subject PPAs provided for the charges for supply as per the tariff notification, issued by the Department of Atomic Energy, Government of India, in accordance with the Atomic Energy Act, 1962; and for the tariff rates so fixed to be subject to adjustment charges as advised by the Department of Atomic Energy, from time to time, as stipulated in Clause 7 of the subject PPA.

II. RELEVANT CLAUSES OF THE PPA:

Clause 7.0 of the PPA, executed by the Appellant with the 2^nd Respondent on 22.09.2005, relates to Rates of Supply. Clause 7.1 records that it is agreed between NPCIL (the Appellant) & GUVNL (the 2^nd Respondent) that the charges for supply of energy shall be as per the tariff notification issued by Department of Atomic Energy (DAE), Government of India, from time to time, in accordance with Section 22(1)(b) of the Atomic Energy Act, 1962 as amended from time to time; the tariff rate so fixed shall be subject to the fuel and heavy water adjustment charge as advised by DAE from time to time; and variations in effective rates as a result of the fuel cost adj