SEIL Energy India Limited vs Central Electricity Regulatory Commission & Ors
- Court
- Appellate Tribunal For Electricity
Court-1
IN THE APPELLATE TRIBUNAL FOR ELECTRICITY
(Appellate Jurisdiction)
REVIEW PETITION NO.09 OF 2019
IN
APPEAL NO. 16 OF 2018
Dated: 31.07.2026
Present: Hon’ble Ms. Seema Gupta, Officiating Chairperson
Hon’ble Mr. Virender Bhat, Judicial Member
In the matter of:
SEIL Energy India Limited
6-3-1090, Block A, Level 5
T.S.R. Towers, Rajbhavan Road, Somajiguda
Hyderabad – 500082 … Review Petitioner
Versus
1. Central Electricity Regulatory Commission
3rd& 4th Floor, Chanderlok Building,
36, Janpath, New Delhi- 110001
2. Power Grid Corporation of India
B-9, Qutab Institutional Area,
Katwaria Sarai, New Delhi-110016
3. Central Transmissin Utility of India Limited
Through its Chairman
Floors No.5th-10th, IRCON International Tower,
Tower 1, Plot No.16, Institutional Area,
Sector 32, Gurugram, Haryana 122003 … Respondent (s)
Counsel on record for the Petitioner(s) : Vishal Binod
Divyanshu Bhatt
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Syed Jafar Alam
Aryaman Saxena
Abhishek Kumar
Arjun Agarwal
Supriyo Ranjan Mahapatra
Counsel on record for the Respondent(s) : Suparna Srivastava for Res. 2
Ranjitha Ramachandran
Srishti Khindaria
Aneesh Bajaj for Res. 3
O R D E R
PER HON’BLE MR. VIRENDER BHAT, JUDICIAL MEMBER
1. The review petitioner M/s SEIL Energy India Limited (formerly known
as Sembcorp Energy India Limited) has sought review of common judgment
dated 11.04.2019 passed by this Tribunal in appeal nos.363/2017 and
16/2018. Appeal no.16/2018 had been filed by the review petitioner against
the order dated 30.10.2017 passed by the Central Electricity Regulatory
Commission in its petition no.240/MP/2016, whereas appeal no.363/2017
had been filed by M/s GMR Warora Energy Limited against the order dated
17.10.2017 passed by the Central Commission in its petition
no.153/MP/2016.
2. A bird’s eye view of the facts in both these appeals, which are relevant
for deciding the instant review petition, are that the review petitioner entered
into bulk power transmission agreement for Long Term Access (LTA) on
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24.12.2010 for supply of 500MW power from its super critical coal fired power
plant in District Nellore, Andhra Pradesh. The Power Grid Corporation of
India Limited (in short PGCIL) respondent no.2 herein, was required to
operationalize the LTA by January, 2014. Since the review petitioner entered
into Power Purchase Agreement (PPA) on 01.04.2013 and the two units of
its power plant were commissioned on 02.03.2015 and 15.09.2015
respectively by which date LTA had not been operationalized, it applied for
Medium Term Open Access (MTOA) on 30.07.2015. MTOA was granted to
it by PGCIL on 10.09.2015. Subsequently, PGCIL intimated the review
petitioner about operationalization of LTA on 21.06.2016. Vide letter dated
09.08.2016, review petitioner sought confirmation from PGCIL whether its
MTOA had already stood terminated/downsized on account of
operationalization of LTA and further asked for relinquishment of MTOA in
case such termination had not taken place. However, vide letter dated
06.09.2016, PGCIL informed the review petitioner about acceptance of its
request for relinquishment of MOTA and also declined the request for non-
applicability of relinquishment charges in respect of relinquishment of MTOA.
Therefore, PGCIL raised PoC bill for the month of August, 2016 demanding
Rs.8,94,56,167/-(Rupees eight crores ninety four lakhs fifty six thousand one
hundred sixty seven only) from the review petitioner towards transmission
charges under the CERC (Sharing of Inter State Transmission Charges and
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Losses) Regulations, 2010 (hereinafter referred to as the 2010 Sharing
Regulations). Aggrieved by the decision of PGCIL to double charge it (i.e. for
LTA Charges as well as MTOA relinquishment charges), the review
petitioner approached the Commission by way of petition no.240/MP/2016
which was disposed of vide order dated 30.10.2017 whereby the
Commission held review petitioner bound to pay
relinquishment/transmission charges for the termination of MTOA. This
order of the Commission was assailed by the review petitioner before this
Tribunal in appeal no.16/2018.
3. In so far as M/s GMR Warora Energy Limited (appellant in appeal
no.363/2017) is concerned, it had participated in the tender floated by
TANGEDCO, a distribution licensee in the State of Tamil Nadu, in the year
2012 for procurement of power on Long Term basis and was declared
successful bidder on 30.10.2013 for supply of 150MW of power.
Accordingly, PPA dated 27.11.2013 was executed between TANGEDCO
and GMR Warora for supply of 150MW of power w.e.f. 01.06.2014 for a
period of 14 years. Subsequently, GMR Warora applied to PGCIL for grant
of LTA for the said quantum of 150MW in the Southern Region for onward
supply to TANGEDCO. At the same time GMR Warora also applied for grant
of MTOA for 150MW in Southern Region. On 27.07.2015, GMR Warora
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received letter from PGCIL informing it that notional LTA was granted in
pursuance to the meeting dated 15.07.2015. The LTA was for a period from
01.04.2015 to 30.09.2028.
4. On 24.07.2015 GMR Warora received a letter from PGCIL asking it to
open a Letter of Credit of Rs.901.03 lakhs with respect to the MTOA dated
22.07.2015. Thereafter, MTOA agreement was executed by GMR Warora
with PGCIL on 04.08.2015. In pursuance to the grant of LTA dated
22.07.2015, GMR Warora executed an LTA agreement dated 11.08.2015
with PGCIL. Vide letter dated 18.08.2015, PGCIL informed GMR Warora
that LTA was expected to be operationalized by October, 2015 subject to
fulfilment of conditions mentioned in the intimation for grant of LTA and
payment of relinquishment charges corresponding to 150MW MTOA.
Thereafter, PGCIL further informed GMR Warora that LTA would be
operationalized w.e.f. 22.01.2016 and also rejected its request for not
claiming relinquishment charges towards stoppage of MTOA. Vide letter
dated 09.06.2016, PGCIL raised a demand upon GMR Warora towards
payment of Rs.2,14,71,750/- as relinquishment charges for closure of MTOA
dated 22.07.2015. Aggrieved by the same, GMR Warora approached the
Commission by way of petitionno.153/MP/2016 which was dismissed by the
Commission vide order dated 17.10.2017. This order of the Commission
was impugned by GMR Warora in appeal no.363/2017.
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5. As already noted hereinabove, both these appeals were disposed of
by this Tribunal vide common judgment dated 11.04.2019, which is under
review, thereby affirming the impugned orders dated 17.10.2017 and
30.10.2017 of the Central Commission. The said judgment of this Tribunal
was assailed by the review petitioner in the Hon'ble Supreme Court by way
of Civil Appeal No.5169/2019 which came to be dismissed vide order dated
15.07.2019. However, liberty was given to the review petitioner to approach
this Tribunal for non-consideration of any issue raised by it in the said
judgment dated 11.04.2019 and also the finding recorded in the same that
review petitioner had agreed to pay the relinquishment charges. The said
order of the Hon'ble Supreme Court is extracted hereinbelow: -
“ ORDER
Having heard learned counsel for the appellant and on
perusing the relevant material, we are not inclined to interfere.
The civil appeal is accordingly dismissed.
However, if the appellant is aggrieved by the non-
consideration of any issue raised by it and the finding recorded
by the Appellate Tribunal for Electricity that the appellant had
agreed to pay the relinquishment charges is factually incorrect
it will be open for the appellant to move the Appellate Tribunal
for Electricity once again.”
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6. Accordingly, the instant review petition has been filed by the review
petitioner.
7. We have heard Shri Sajan Poovayya, learned senior counsel
appearing for the review petitioner and Ms. Ranjitha Ramachandran, learned
rd
counsel for the 3 respondent CTUIL. We have also perused the written
submissions filed by the learned counsels.
8. The primary ground on which the instant review petition is founded is
that this Tribunal, in the “Analysis” part of the judgment dated 11.04.2019,
has considered and discussed only the facts related to the appeal
no.363/2017 (filed by GMR Warora) and the facts involved in petitioner’s
appeal no.16/2018 have not been referred to at all. It is argued that the
review petitioner was constrained to apply for MTOA for the reason that LTA
granted to it had not been operationalized by the time it entered into PPA
with Andhra Pradesh discoms and two units of its power plant were
commissioned whereas GMR Warora had applied for both LTA as well as
MTOA simultaneously which makes its case distinct from the case of the
petitioner.
9. It is further argued on behalf of the petitioner that GMR Warora had
given a specific consent for payment of relinquishment charges vide its letter
dated 13.01.2016 sent to PGCIL, which has been relied upon by this Tribunal
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while dismissing the appeal but no such undertaking had been given by the
petitioner. The submission is that the judgment under review has been
rendered in the facts and circumstances unrelated to the petitioner and is
based upon the undertaking/acceptance given by GMR Warora, not by the
petitioner, and therefore, the same cannot be applied to the petitioner’s case.
10. Thus, it is contended that the judgment dated 11.04.2019 suffers a
patent error which makes it unsustainable qua the review petitioner and calls
for rectification of those factual errors.
rd
11. The review petition is vehemently contested on behalf of the 3
respondent CTUIL. It is argued that though there is slight variation between
the facts involved in the two appeals yet that was too insignificant to be taken
to differentiate the case of petitioner from that of GMR Warora. It is argued
that in essence, both the petitioner as well as GMR Warora were aggrieved
by levy of relinquishment charges for relinquishment of MTOA upon
operationalization of LTA in their favour, which aspect has been discussed
and decided in the judgment under review. It is further submitted that the
fact that petitioner has not consented to pay the relinquishment charges, as
was done by GMR Warora, was not relevant at all for the reason that this
Tribunal has reached the final conclusion upon perusal of the relevant
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regulations as well as the facts involved in the two appeals de hors any such
consent given by GMR Warora.
12. It is, thus, argued that the judgment dated 11.04.2019 does not suffer
from any error apparent on the face of record and the review petition merits
dismissal.
Our Analysis: -
13. In both the above noted appeals, the appellants had challenged the
levy of relinquishment charges on them upon relinquishment of the
respective MTOAs when LTA granted in their favour were operationalized by
nd
the 2 respondents. However, there appears clear distinction between the
facts of the two appeals even though the relief claimed was identical.
14. Perusal of the judgment under review does reveal that it notes the facts
involved in appeal no.16/2018 (filed by petitioner herein) and the contentions
of the appellant in Paragraph nos.3.2 to 3.26. The submissions of the
petitioner’s counsel have been noted in Paragraph nos.4.1 to 4.22.
However, in Paragraph no.6.0 which precedes the “Consideration and
Analysis” part of the judgment, this Tribunal has observed that the
issues/facts as well as the submissions in appeal no.363/2017 alone are
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being taken up for the sake of brevity. We find it apposite to extract the said
Paragraph of the judgment hereunder: -
“6.0 The issue and facts of the case and the submissions
of the Appellant and the Respondents in Appeal No. 363
of 2017 are similar to that in Appeal No. 16 of 2018, except
for the dates of various orders and, therefore, for the sake
of brevity we shall take up the issue and facts of the case
and the submissions of Appeal No. 363 of 2017 and,
therefore, a common judgment is being rendered.”
15. In the “Consideration and Analysis” part of the judgment, the Tribunal
has referred to the relevant regulations i.e. CERC Open Access Regulations,
2004 under which the concept of LTA and STOA was evolved as well as the
CERC Open Access Regulations, 2009 wherein the concept of MTOA
evolved. Thereafter, in Paragraph 7(vii), Regulation 24 of the CERC Open
Access Regulations, 2009 has been extracted which makes provision for
relinquishment of MTOA.
16. Subsequent Paragraph nos.7(viii), 7(ix), 7(x) and 7(xi) of the judgment
are very material and are extracted herein below: -
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“viii) In the meeting for processing of LTA and MTOA
applications held on 15.7.2015, the Appellant requested
for grant of MTOA as per the application made in the
month of November, 2013 and it would relinquish MTOA
rights and pay the applicable relinquishment charges in
line with the Commission’s regulations as and when the
LTA for the application made in December, 2013 is
operationalized. Relevant portion of minutes of meeting
dated 15.7.2015 is extracted as under:
“11.0 CTU stated that GMR EMCO Energy Ltd. has
applied MTOA for 150 MW in Nov, 2013 and also
applied LTA for 150 MW in Dec, 2013 and enclosed
same PPA in both the referred applications. Towards
this, the representative of GMR stated that as per the
directions given in the CERC order, the applications
shall have to be processed sequentially i.e. the
MTOA application of Nov, 2013 shall have higher
priority than the LTA application received in Dec,
2013. He accordingly requested that MTOA may be
granted as per their applications made in the month
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of Nov‟2013 and they shall relinquish MTOA rights
and pay the applicable relinquishment charges in line
with the CERC regulations as and when the LTA for
the application made in Dec ‟2013 is
operationalized.”
ix) The liability to bear charges for relinquishment of
MTOA under Regulation 24 was also a condition of the
LTA intimation dated 22.7.2015 issued by PGCIL which
contained the following condition:
“As decided in the meeting held on 15.7.2015 for
processing of pending LTA & MTOA applications received
in Nov' 13 & Dec' 13, the above grant of LTA shall not be
operationalized until the earlier granted MTOA of 150 MW
for the same PPA against the application made in Nov' 13
is relinquished.”
x) The Appellant vide its letter dated 13.1.2016 requested
PGCIL to operationalize 150 MW LTA by foreclosing the
corresponding 150 MW under MTOA and gave consent
for payment of relinquishment charges as per the
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applicable regulations, rules and guidelines. The said
letter is extracted as under:
“We are in receipt of your letter dated 30th December,
2015 (Ref No. 8 above) received by us on 08.01.2016,
wherein you had sought our consent for payment of
relinquishment charges prior to operationalization of the
LTA of 150 MW. We would like to reiterate that vide our
letter dated 17th December, 2015 we had only sought for
conversion of our MTOA of 150 MW to LTA of 150 MW for
purpose of meeting our commitment for supply of power
to TANGEDCO on long term basis. As such there is no
relinquishment of open access capacity of 150 MW per se
but the same capacity which is presently under MTOA will
get converted to LTA. We will therefore, continue to utilize
and seek scheduling of 150 MW in accordance with extant
rules and regulations. Your reliance on Regulation 24 of
the CERC Regulations for connectivity and open access
2009 is, therefore, misplaced and not applicable as there
is neither any relinquishment of the capacity allocated to
us nor will PGCIL suffer any loss as we will continue to
avail open access of 150 MW.
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We would like to draw your kind attention to our earlier
letter dated 30th Oct‟‟15 cited at 6 above under numbered
para 2 our MTOA in existence as on that date of
operationalizing the LTA, may be short closed for the
balance period of grant”. This in our view suffices the
requirement of prior notice for foreclosure of MTOA
especially in the circumstance in the instant case where
the same transaction of dispatch would be converted to
LTA.
In view of the above, it is requested to immediately
operationalize the LTA of 150 MW by closing the
corresponding 150 MW under MTOA.
Further as required by you vide your letter dated 30th
December, 2015 we consent to payment of any
relinquishment of charges as per applicable regulations,
rules and guidelines.”
xi) The grant of MTOA to November, 2013 application and
grant of LTA to December, 2013 application was made
with the consent of the Appellant and with the clear
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understanding that whenever the LTA got operationalized
for full quantum, the MTOA was to be relinquished along
with payment of relinquishment charges.”
17. Concededly, none of these facts or events referred to in these
Paragraphs of the judgment are related to the review petitioner herein.
These are unique to the appeal filed by GMR Warora. Neither had the
petitioner made any statement in the meeting dated 15.07.2015 that it would
pay relinquishment charges in line with CERC Regulations for
relinquishment of MTOA nor had it sent letter dated 13.01.2016 to PGCIL
giving its consent for payment of relinquishment charges as per applicable
regulations.
18. On the basis of these facts, which relate to GMR Warora alone, this
Tribunal has observed in Paragraph 7(xi) that grant of LTA and MTOA was
made with the consent of the appellant and with clear understanding that
whenever the LTA got operationalized for full quantum, the MTOA was to be
relinquished along with payment of relinquishment charges.
19. It is true that the Paragraphs 7(xii), 7(xiii) and 7(xiv) this Tribunal has
referred to Regulation 24 to say that the Regulation is couched in absolute
terms and does not admit any interpretation which exempts an MTOA
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customer from payment of relinquishment charges if the capacity covered
under MTOA is utilized for LTA. This, at best, can be construed as an
additional ground for rejection of the prayer of the appellant in the appeal.
20. The fact remains that factual context in which the petitioner had filed
the appeal no.16/2018 as well as the submissions made by its counsel have
been totally overlooked in the “Analysis” part of the judgment under review
and the judgment has been rendered only upon consideration of the facts
involved in appeal no.363/2017. This Tribunal clearly appears to have been
influenced by the facts/circumstances noted in Paragraphs 7(viii) to 7(xi)
which have been extracted hereinabove, in dismissing the appeals.
Undisputedly, these facts/circumstances are nowhere related to the case of
petitioner in appeal no.16/2018.
21. We are, thus, satisfied that a patent and glaring mistake has occurred
in the judgement dated 11.04.2019 which not only undermines its soundness
but also has resulted in serious miscarriage of justice. The error is very
material and stares in the eye, which is not only difficult but impossible to
ignore. This is a fit case in our opinion where the power of review must be
exercised to correct the patent mistake in the judgement under review. There
is no escape from the conclusion that the facts and circumstances upon
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which the judgement dated 11.04.2019 has been rendered are not borne out
from the record of appeal no.16/2018 and therefore, it needs to be corrected.
22. We may note here that we would be failing in our duties and would be
perpetuating the glaring mistake in case we don’t review the judgement
dated 11.04.2019 by making much needed corrections in it. To rectify in the
compulsion of judicial conscience. In saying so, we derive strength and
support from the wise and inspiring words of Justice Bronson in Pierce Vs.
Delameter 1 NY3 (1847), “a judge ought to be wise enough to know that he
is fallible and therefore ever ready to learn; great and honest enough to
discard all mere pride of opinion and follow truth wherever it may lead; and
courageous enough to acknowledge his errors”.
23.
Thus, we have no hesitation acknowledging that this Tribunal has erred
in dismissing the appeal no.16/2018 of the review petitioner vide common
judgment dated 11.04.2019 along with appeal no.363/2017 upon considering
the facts and circumstances related to appeal no.363/2017 alone. The said
judgment dated 11.04.2019 is manifestly based upon misconception of facts
vis-à-vis the review petitioner herein and thus suffers from an error apparent
on the face of record.
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24. Accordingly, we allow the review petition and set aside the judgment
dated 11.04.2019 qua the review petitioner herein. We make it clear that the
said judgment would remain in force qua M/s GMR Warora, the appellant in
appeal no.363/2017.
25. The appeal no.16/2018 be now listed for hearing on 21.08.2026 .
st
Pronounced in the open court on this the 31 day of July, 2026.
(Virender Bhat)
Judicial Member
(Seema Gupta)
Officiating Chairperson
√
REPORTABLE / NON-REPORTABLE
tp
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