Back
2024 Supreme(Online)(APTEL) 15
APPELLATE TRIBUNAL FOR ELECTRICITY
Mr. Sandesh Kumar Sharma, Technical Member, Mr. Virender Bhat, Judicial Member
NTPC LIMITED – Appellant
Versus
CENTRAL ELECTRICITY REGULATORY COMMISSION & Ors – Respondent
APL 137 2019
Anand K. Ganesan, Swapna Seshadri, Ritu, Parichita Chowdhury, Hemanta Madhab Sharma, Avijit Roy
The court emphasized the need for thorough consideration of evidence regarding delays in project commissioning, remanding unjustified refusals while affirming decisions based on prudence.
Headnote:(A) Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations, 2014 - Approval of tariff for Bongaigaon Thermal Power Station - Delay in commissioning unit-1 - Appellant claimed 1886 days delay due to various factors, but Commission condoned only 1303 days - Issues raised regarding refusal to condone delays and disallowance of IDC/IEDC. (Paras 1-11)
(B) Delay in commissioning - The court found the Commission's refusal to condone delays due to violence and bandh unjustified, remanding the matter for fresh consideration; however, the refusal for delay due to RCC bridge unavailability was upheld. (Paras 12-25)
Facts of the case:
The appellant sought approval for tariff of its power station unit, citing delays caused by external factors such as violence and infrastructure issues. The Commission's order condoned partial delay but not all claimed.
Findings of Court:
The court set aside the Commission's findings on delays due to violence and river course change, remanding these for reconsideration, while affirming the decision on RCC bridge delays.
Issues: The main issues were the appellant's claims for condoning delays and the Commission's findings on those claims.
Ratio Decidendi: The court held that the Commission failed to adequately consider evidence of delays due to violence and environmental factors, necessitating a fresh review, while affirming the decision regarding the RCC bridge.
Result: The appeal stands allowed to the extent outlined, with remand for further consideration.
J U D G M E N T
PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. The appellant NTPC Limited (National Thermal Power Corporation Limited) is aggrieved by the order dated 22.05.2017 passed by 1 st respondent Central Electricity Regulatory Commission (hereinafter referred to as “the Commission” or “the Central Commission”) in petition No.45/GT/2016 filed by the appellant for approval of tariff of its Bongaigaon Thermal Power Station (BTPS) Unit-1 from 01.04.2016 to 31.03.2019 in accordance with the provision of Central Electricity Regulatory Commission (Terms and Conditions of Tariff) Regulations , 2014 (hereinafter referred to as “2014 Tariff Regulations”).
2. The appellant had initially filed the petition with regards to all the three
units i.e. Units 1, 2 & 3 having capacity of 250MW each with anticipated commercial operation date of 21.03.2016, 31.03.2017 and 30.09.2017 respectively. However, in pursuance to affidavit dated 08.08.2016 filed in this regard by the appellant before the Commission along with revised petition, the petition has been considered only with regards to unit-1 of the said Thermal Power Station having capacity of 250MW and having achieved commercial operation on 01.04.2016.
3. It appears that Assam Power Generation Company Limited (in short
“APGCL”) was operating a plant with capacity of 240MW at the site of the said power station earlier. Keeping in view the long-term power purchase requirements of the State of Assam as well as the dilapidated condition of the old power plant, it was decided by the central government that APGCL would hand over the old generating station to the appellant and the appellant would construct new generating station at the same site after dismantling / scrapping the old one. Therefore, the implementation of the project included dismantling / scrapping of the unserviceable equipment, old buildings and concrete structures from the plant area.
4. As per the original investment approval dated 30.01.2008, the project was scheduled to be commissioned on 04.02.2011, but achieved actual commercial operation on 01.04.2016 in so far as its unit-1 is concerned. Thus, there has been a delay of approximately 1886 days i.e. 61 months and 20 days in achieving commercial operation of unit-1.
5. The capital cost and the annual fixed charges claimed by the appellant for the period 2016-2019 in the petition are given below: -
“ Capital Cost
| 2016-17 | 2017-18 | 2018-19 | |
| Capital cost as on COD on cash basis | 243123.17 | - | - |
| National IDC Capitalised | 2533.00 | - | - |
| Less: Short Term FERV Charged to P&L A/c | (-) 76.26 | - | - |
| Add: Adjustment: Transfer Out Assets | 2912.59 | - | - |
| Less: Adjustment: Transfer In Assets | (-)2256.49 | - | - |
| Opening Capital Cost as on 1.4.2016 | 246236.02 | 276430.59 277152.70 | |
| Additions during the year | 10800.00 | 0.00 | 0.00 |
| Liability discharges during the year | 19394.57 | 722.10 | 0.00 |
| De-capitalization | 0.00 | 0.00 | 0.00 |
| Net Additions | 30194.57 | 722.10 | 0.00 |
| Closing Capital Cost | 276430.59 | 277152.70 277152.70 | |
| 2016-17 | 2017-18 | 2018-19 | |
| Depreciation | 13378.10 | 14186.98 | 14205.49 |
| Interest on Loan | 15318.62 | 14953.42 | 13614.25 |
| Return on Equity | 15449.08 | 16362.92 | 16384.26 |
| Interest on Working Capital | 3691.77 | 3985.06 | 3986.03 |
Annual Fixed Charges O & M Expenses
6750.00
7892.50
8390.25 Total Annual Fixed Charges
54587.57
57380.88
56580.28 ”
6. Be noted here that one Shri Saurav Gandhi had appeared before the Commission on behalf of Ms. Mallika Sharma Bezbaruah to oppose the petition. He also filed objections / comments on behalf of Ms. Mallika.
7. As per the appellant, following factors were responsible for delay of 1886 days in commissioning of unit-1 of the power project: - (i) Violence, Bandhs & Curfew in 2008, 2012 & 2013 (ii) Rainfall in 2008, 2009, 2010, 2012, 2013, 2014 & 2015 (iii) Non availability of RCC bridge (iv) Koro Syndrome (v) Aggregate availability (vi) Storm causing failure of structure (vii) Change of course of Champamati river
8. Vide the impugned order, the Commission has condoned the delay of 1303 days as against the delay of 1886 days claimed by the appellant. Accordingly, the sc
