J U D G M E N T

PER HON’BLE (SMT.) JUSTICE RANJANA P. DESAI - CHAIRPERSON: 1. The Appellant is a company registered under the Companies Act, 1956. The Appellant is a long term access customer which is an independent power producer who had applied for and was granted long term access by Respondent No.1 from its generating station near Bilaspur in Chhattisgarh. The Appellant is also a designated inter-state transmission system customer in terms of Section 2(1)(1) of the CERC (Sharing of Inter State Transmission Charges and Losses) Regulations, 2010 (“Sharing Regulations”). Respondent No.1 is Power Grid Corporation of India Limited(“PGCIL”) which is a Government of India Enterprise undertaking transmission related works and notified as a Central Transmission Utility under Section 38 of the Electricity Act, 2003(“the said Act”). As per Regulation 4 and Regulation 2(1)(q) of the CERC (Grant of Connectivity, Long Term Access and Medium Term Open Access in Inter State Transmission and related matters) Regulations, 2009 (“Connectivity Regulations”), PGCIL is also nodal agency for grant of long term access to inter- state transmission system. Respondent No.2 is Central Electricity Regulatory Commission (“the CERC”) whose order dated 09/08/2016 passed in Petition No.79/MP/2016 is challenged in this appeal.

2. Gist of the facts as stated in the petition is as under:

(a) The Appellant had made an application to PGCIL seeking Long Term Open Access(“LTOA”) for transfer of 300 MW to be generated from its generating plant coming up in the State of Chhattisgarh. By letter dated 29/07/2009 PGCIL permitted LTOA to the Appellant for 300 MW with requirement of additional system strengthening. Open access was permitted for 25 years from the date of commencement of open access. The point of injection of power was mentioned as WR Pooling Station (Bilaspur) for Chhattisgarh IPPs.

(b) By a separate letter dated 29/07/2009 PGCIL enclosed the intimation letter for providing LTOA and requested the Appellant to initial the Bulk Power Transmission Agreement (“BPTA”), a draft of which was attached to the letter and it was also requested that an undertaking to sign requisite BPTA upon its approval by the CERC be provided.

(c) On 24/02/2010 the BPTA was entered into between PGCIL and the Appellant and other generating companies as envisaged under Connectivity Regulations whereby PGCIL agreed to provide such open access required by long term transmission customers from the date and in the manner mentioned in annexures to the agreement for a period of 25 years. Under the BPTA, Long Term Access (“LTA”) was granted to the Appellant for 171 MW (i.e. 126(WR) and 45(NR)). Ninety Six MW to be generated from the Appellant’s generating plant was purchased by Chhattisgarh Power Trading Company Limited who was granted open access for the same under the BPTA. Based on the discussions in the joint meeting held and as per the BPTA signed along with B.G. submission on 24/02/2010 the LTOA details indicated vide letter dated 01/10/2009 were revised. All other terms and conditions as indicated in the earlier intimation letter dated 29/07/2009 remained the same.

(d) On 23/09/2010 Sharing Regulations were issued by the CERC which were published in the Gazette of India dated 24/09/2010. Billing, Collection and Disbursement (“BCD”) Procedure was framed under Sharing Regulations. On 06/08/2012 Transmission Service Agreement (“TSA”) was entered into between the Appellant and PGCIL pursuant to Sharing Regulations.

(e) On 17/07/2015 PGCIL sent a letter to the Appellant requesting the Appellant to open a Letter of Credit of Rs.7.7 crores in favour of PGCIL towards the payment security mechanism as per the CERC Regulations. It was stated in the letter that transmission system required for LTA is scheduled for commissioning in August/September, 2015.

(f) On 31/07/2015 the Appellant commissioned its generating plant and started evacuating power using short term open access provided by the Weste