TMI Blog2007 (9) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Electricity Board (GEB) as parallel operation charges levied before 01.09.2000, which would be in contravention of Commission's order of 31.08.2000. By the impugned order, the Commission upheld the contention of the respondent and directed the refund of parallel operation charges recovered by GEB before 01.09.2000. Hence, the appeal. The Facts: 2. The facts leading to the filing of application No. 812 of 2004 are as follows: a) The Electricity Regulatory Commissions Act came into force on 25.04.98. The Act enabled the State Government to establish Electricity Regulatory Commissions. However, before any Commission was appointed in Gujarat, the Government of Gujarat, adopted a resolution on 09.11.1998 regarding establishment of captive power plants subject to previous consent of GEB under Section 44(1) of The Electricity (Supply) Act 1948. The resolution, inter alia, provided that if the captive power plants intend to have parallel operation with the grid they would be allowed to reduce their contract demand up to a level of 25% of original contract demand but in case they intend to operate on standalone basis no contract demand would be insisted upon. The drawal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pen for GEB to approach GERC with necessary application under section 29 of ERC Act 1998.... d) The GEB did not challenge this order. Nor did the GEB approach the Commission with any application under Section 29 of the ERC Act seeking approval of the tariff determined by its first circular No. 687. It issued a circular to its officers, No.713 dated 01.09.2000, discontinuing recovery of parallel operation charges under the Circular No.706 as well as under the Circular No.687. The circular No. 687 again came under challenge in the petition filed by M/s. Reliance Petroleum Ltd. (RPL), being petition No.71 of 2002. e) The RPL, inter alia, pleaded that with a view to ensure that while power could be exported by it to the GEB's grid no power could be imported by RPL's captive generating plants. It had installed Reverse Power Relay. The relay trips and opens the circuit breaker in a period of milliseconds which prevents invert flow of power from GEB to the captive generating plant. RPL pleaded that till GEB's power supply was released to it the question of parallel operation charges would not arise. RPL informed GEB vide a letter dated 03.04.1999 that all necessary arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anuary, 2000, we must hold and decide that the Parallel Operation Charges could not have been claimed by the GEB and that the amount in question could not have been recovered/deducted by the GEB from the bills of the Petitioner.... h) The respondent, Oil Natural Gas Corporation Ltd. (ONGC), in its petition No. 812 of 2004 referred to the judgment of the Commission dated 31.08.2000 and to the circular No. 713 of 2000 under which parallel operation charges from September 2000 onwards were directed to be re-funded. It is aggrieved that despite the re-fund the GEB/the appellant again recovered the charges vide its bill dated March 2002. The GEB allegedly took the plea that the parallel operation charges had been discontinued w.e.f. 01.09.2000 but that the charges recovered for the period prior to 01.09.2000 were not refundable. The ONGC also took the plea that the Commission had held that the GEB was not entitled to recover the charges fixed under its circular No. 687 without the approval of the Commission and so it followed that the GEB was liable to refund whatever parallel operation charges had been recovered by it. Impugned order: 3. The Commission noted the order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission in place. Although one notification of 12.11.98 declared establishment of GERC, the other notification appointed only the members of the selection committee. Naturally the establishment of GERC by notification on 12.11.98 did not take effect till the members of GERC were actually selected and appointed and those appointed actually took charge of their office. Admittedly the Commission became operative on 19.04.99. Thus there was no Commission in place on 21.12.1998 when the Circular No. 687 was issued. The Commission came into existence on 19.04.1999. The Commission's order dated 06.09.2002 holds the commercial circular No. 687 to be bad because the Commission had come into existence on 12th November, 1998 which was a mistake of fact. This Tribunal had an opportunity to consider the position of tariff fixation during the period after the enforcement of ERC Act and the establishment of the Regulatory Commission. In Benani Zinc Ltd. v. Kerala State Electricity Board and Ors. Appeal No. 154 of 2005 Energy Law Reports 2007 APTEL's 868 the Honorable Chairperson had this to say: 25. Section 29(1) of the ERC Act, 1998 envisages determination of Tariff by the State Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliament could not have intended a situation where no authority would be empowered to determine the tariff, between the date of coming into force of the ERC Act, 1998 and the constitution of the Commission. It is only after the Regulatory Commission is constituted that it will be the sole authority to determine the Tariff. 6. This being the legal situation the Circular No. 687 cannot be said to be hit by Section 29 of The ERC Act 1998. As stated earlier when the Circular No. 687 was issued there was no Commission in place. 7. The subsequent Circular No. 706 was issued when the Commission was in existence. The GEB could not have any jurisdiction to alter the parallel operation charges which was in the nature of tariff and had been fixed by GEB in exercise of authority vesting in it. The Circular No. 706 altered the established tariff situation and was therefore, invalid unless approved by the Commission. There is no quarrel that the Circular was invalid and was liable to be quashed. 8. There is no dispute over the legal situation that till the Commission issued its tariff orders the tariff regime, as prevalent on the date of constitution of the Commission, continue to remai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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