BEFORE THE GUJARAT ELECTRICITY REGULATORY COMMISSION
AT GANDHINAGAR
Petition No. 1512 of 2015
In the matter of:
Petition under Section 94 of the Electricity Act, 2003 and Regulation 45 read with
Regulation 21 of GERC (Terms and Conditions of Intra-state Open Access)
Regulations, 2011, Notification No. 3 of 2011 for Intra-State Open Access, against
Short-Term Open Access transmission charges collected by SLDC for days for
which the power is non-traded/under traded after receiving NOC from SLDC for
respective months and for refund of Rs. 15,94,024.00 paid to SLDC against total of
their demand dated 28.01.2015 and 16.04.2015.
Petitioner
:
Steelcast Limited,
Ruvapari Road,
Bhavnagar – 364005
Represented by
:
Shri Vikram Shah
V/s.
Respondent No. 1
:
State Load Dispatch Centre (SLDC)
132 KV Gotri Sub-station Compound,
Near T B Hospital, Gotri Road,
Vadodara – 390021.
Represented By
:
Learned Advocate Shri M.G.Ramachandran with Shri
H.D.Sharma
Respondent No. 2
:
Gujarat Energy Transmission Corporation Limited,
Sardar Patel Vidyut Bhavan,
Race Course Circle,
Vadodara – 390007
Represented By
:
Learned Advocate Shri M.G.Ramachandran with Shri
Amit Sachan and Ms. Venu Birappa
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CORAM:
Shri P.J.Thakkar, Member
Shri K. M. Shringarpure, Member
Date: 07/07/2016
ORDER
1) The present petition has been filed by the petitioner seeking following
reliefs:
i)
To quash all the invoices raised against the short term open access
consumers on maximum capacity as indicated in NOCs.
ii)
To direct SLDC to refund all payment collected under the Short Term
Open access charges for reserved capacity for non-traded and undertraded days.
iii)
To direct SLDC and GETCO to take approval of the Commission prior
to collection of charges from the open access consumers in similar
cases.
2) The facts of the case as mentioned in the petition are as under:
2.1. The petitioner is a public limited company registered under the Companies
Act, 1956 engaged in manufacturing of castings and related business. The
petitioner is a consumer of the PGVCL having consumer No. 23064,
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contract demand of 6000 KVA and receiving the electricity at 66 KV
voltage.
2.2. A notice was issued by State Load Dispatch Centre on 19.04.2015 to the
petitioner stating that as per the GERC (Terms and Conditions of IntraState Open Access) (First Amendment) Regulations, 2014 the transmission
charges for Short Term Open Access shall be payable by the STOA
consumer at the maximum capacity reserved for that consumer.
2.3. Accordingly, the SLDC started charging the transmission charges on the
quantum of Short Term Open Access granted, even in cases where the NOC
for collective transactions was issued by SLDC, but the power was neither
traded nor scheduled.
2.4. As per CERC (Open Access in Inter-State Transmission) (amendments)
Regulations, 2009, which is applicable to STOA, it is clearly stated in
Chapter -3 that the Long Term customer and the Medium Term customer
shall have priority over the Short Term Open Access customer for use of
Inter-State transmission system. In other words, the STOA customer can
have access to transmission line, if spare capacity is available with Inter-
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State transmission system after catering to all Long Term and Medium
Term customers.
2.5. The provision of transmission charges for the Short Term Open Access on
the maximum capacity reserved, in GERC (Terms and Conditions of IntraState Open Access) (First Amendment) Regulations, 2014 under which the
respondents have been claiming such transmission charges, was also there
in the GERC (Terms and Conditions of Intra-state Open Access)
Regulations, 2011. But no such invoices were issued under Clause 21 of
the said Open Access Regulations, 2011 till April, 2014. As such this was a
new practice adopted by SLDC for which SLDC should have taken the
permission of GERC, before issuing such invoices to the STOA consumers.
2.6. As per Section 2 (74) of the Electricity Act, 2003, the definition of
“transmit” means as conveyance of electricity by means of transmission
lines and the expression “transmission” shall be construed accordingly. In
other words, transmission charges are applicable if, and only if the energy
is transmitted through the transmission lines. If energy is not conveyed
through transmission lines, then transmission charges are not applicable
and no invoice can be raised for transmission charges in such cases.
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2.7. As per Central Electricity Regulatory Commission (Open Access in InterState Transmission) Regulations, 2008 and its subsequent amendments,
the Long Term customer and Medium Term customer shall have priority
over the Short Term Open Access customer for use of Inter-State
transmission system and the Short Term customer shall be eligible for
Short Term Open Access if surplus capacity is available on the Inter-State
transmission system after use by the Long Term customer and Medium
Term customer. So in line with the above, the transmission charges are
decided based on the total power required to be transmitted by Long Term
and Medium Term customers. Similar provision is made in the GERC
(Terms and Conditions of Intra-State Open Access) Regulations, 2011.
Thus, the transmission charges are fully recovered from Long and Medium
term customers and STOA customers are paying the charges to STU for the
spare capacity available in the transmission lines at a particular time when
power is transmitted for him. In line with this theory, the STOA
transmission charges in Gujarat were kept at one fourth of the charges for
long term and medium term open access customers. Hence, the collection
of charges from STOA customers for the reserved capacity is out of context.
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2.8 In Gujarat State, the open access policy is governed by GERC (Terms and
Conditions of Intra-state Open Access) Regulations, 2011. Regulation 21
(2) (i), of the said Regulations clearly indicates that the total transmission
cost is to be shared by all long-term and medium-term open access
customers. In other words it can be explained that the transmission
charges are fully recovered from long term and medium term customers
and the STOA customers are paying charges for the spare capacity, if any,
available in transmission lines at a particular time when power is
transmitted for them.
2.9. Further, the provisions of Regulation 21 (2) (ii) is misinterpreted by the
respondents. In case if the actual scheduled energy is less than the NOC
received by STOA consumer then the transmission charges can be collected
up to a maximum capacity kept reserved for that particular date for STOA
consumer. There is no question of reserving capacity for STOA consumers
in Inter-State or Intra-State transmission network as scope itself says that
STOA will be allowed only if spare capacity is available in the transmission
network.
Page 6
2.10 GERC (Terms and Conditions of Intra-state Open Access) Regulation, 2011
has provisions to deal with under utilisation or non-utilisation of open
access capacity in intra-state transmission system. On examination of the
provisions for under utilisation of open access capacity, it is evident that
there is a provision for relinquishment of right to access only in relation to
long-term open access consumers.
There is no provision for
relinquishment of right to access for Short Term Open Access consumers as
they do not have right to access to the transmission system. As such
compensation for stranded capacity for such non-utilisation/underutilisation is to be borne by the long term and medium term open access
consumers for such relinquishment.
2.11 As per Minutes of Meeting dated 24.11.2011 held by the Commission, with
regard to Open Access issues, it is minutised that the Open Access
transactions through power exchanges are to be treated as collective
transactions and to be dealt with according to the Inter-State Open Access
Regulations of the CERC.
2.12 As per amendment made in Clause 10 in Regulation 16 and Clause 11 in
Regulation 20 of CERC (Open Access in Intra-State Transmission)
Regulations, 2009 for collective transactions except transmission charges
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specified in the aforesaid Regulations no charges are payable by Short
Term Open Access consumer. Therefore, the charges collected by SLDC are
in violation of CERC Regulations, 2009.
[3] Respondent State Load Dispatch Centre (SLDC), in reply to the petition,
submitted that the transmission charges are being recovered strictly as per
the provisions of GERC (Terms and Conditions of Intra-State Open Access)
Regulations, 2011 as notified by the Commission. Regulation 21 (2) (ii) of
the aforesaid Regulations provides that the transmission charges for the
Short Term Open Access shall be payable on the basis of maximum capacity
reserved for such customers.
3.1 The Commission vide its Notification No. 1 of 2014 dated 4.03.2014, issued
GERC (Terms and Conditions of Intra-State Open Access) (First
Amendment) Regulations, 2014 and amended the transmission charges
payable by Short Term Open Access customer to make it equal to the
charges payable by the Long and Medium Term Open Access customers.
The same was made effective from 1.04.2014. However, there was no
change in the basis of the charges i.e. maximum capacity reserved for
customer. Both these Regulations provided that the transmission charges
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for Short-Term Open Access shall be payable on the basis of maximum
capacity reserved for such customers.
3.2 Subsequently, the Commission vide its Notification No.3 of 2014 dated
12.8.2014, issued GERC (Terms and Conditions of Intra-State Open Access)
(Second Amendment) Regulations, 2014 in which for the first time it was
specified that the transmission charges payable by Short Term Open Access
customer shall be on actual scheduled energy basis. The notification was
published in the official gazette on 14.8.2014, and from that date the
respondents are charging the transmission charges on the basis of the
energy actually scheduled for Short-Term transactions. As such the petition
is misconceived and is liable to be dismissed.
3.3 The petitioner is seeking a declaration that the transmission charges for
collective transactions should be on actual scheduled energy and not on
maximum reserved capacity even for the period prior to 14.8.2014, namely
for the period FY 2012-13 and FY 2013-14. However, SLDC has acted in
accordance with the prevailing Regulations framed by the Commission
namely, GERC (Terms and Conditions of Intra-State Open Access)
Regulations, 2011 and GERC (Terms and Conditions of Intra-State Open
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Access) (First Amendment) Regulations, 2014 which provide for
transmission charges to be payable on the basis of maximum capacity
reserved for the customers. The above action of the respondent, recovering
transmission charges on the basis of maximum capacity reserved has
already been upheld by the Commission vide Order dated 24.3.2015 in
Petition No. 1440 of 2014 in case of Gujarat Granito Manufacturers
Association V/s. SLDC and others.
3.4 The petitioner had sought the facility of Short Term Open Access on the
State transmission system to procure electricity through Indian Energy
Exchange as collective transaction. The consent or No Objection Certificate
of the respondent, SLDC is required for such open access on the State’s
Transmission system and the same has been recognized in the Central
Electricity
Regulatory
Commission
(Open
Access
in
Inter-State
Transmission) Regulations, 2008 also.
3.5 SLDC after considering the surplus capacity available after allotment to the
Long and Medium Term Open Access customers, had granted the
consent/NOC for 5.4 MW to the petitioner. Once granted, open access for
such capacity is accounted for and kept reserved for the petitioner and
deducted from the available surplus capacity while granting open access to
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subsequent applicants. Thus, it is wrong on the part of petitioner to claim
that there is no concept of reserved capacity.
3.6 The transmission charges applicable for the open access on the State
network is to be determined as per GERC (Terms and Conditions of IntraState Open Access) Regulations, 2011 and the amendments thereto. The
Central Electricity Regulatory Commission (Open Access in Inter-State
Transmission) Regulations, 2008 which govern the Short-Term Open
Access in Inter-State transmission system also provide that the
transmission charges payable for use of state network is as fixed by the
respective State Commission. Only in the absence of determination of the
transmission charges by the State Electricity Regulatory Commission, the
charges indicated in Regulation 16 (2) of CERC Open Access Regulations
shall apply. The proviso to Regulation 16 (2) would not apply once the
respective State Electricity Regulatory Commission has determined the
transmission charges, as in the present case. GERC (Terms and Conditions
of Intra-State Open Access) Regulations, 2011 was notified on 1.6.2011,
which provided for transmission charges for Short-Term Open Access
customers to be leviable on the basis of the maximum capacity reserved for
such customers.
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3.7 The said Regulations were amended vide GERC (Terms and Conditions of
Intra-State Open Access) (First Amendment) Regulations, 2014 notified on
4.3.2014. The said Amendment substituted Regulation 21 (2) (ii) and
equated the transmission charges for Short-Term Open Access to Long and
Medium Term Open Access customers and also provided that the
transmission charges for the Short-Term Open Access shall be payable on
the basis of maximum capacity reserved for such customers. Thus, the
proviso in the principal Regulations as well as the First Amendment made
in principal Regulations by the Commission provide that the transmission
charges for Short-Term Open Access shall be payable on the basis of
maximum capacity reserved for the customers.
3.8 The Open Access Regulations were further amended vide GERC (Terms and
Conditions of Intra-State Open Access) (Second Amendment) Regulations,
2014 notified on 14.8.2014, wherein Regulation 21 (2) (ii) was amended
and transmission charges for Short-Term Open Access has been made
leviable on actual scheduled energy. The second amendment has been
made applicable effective from 14.8.2014. Hence, prior to 14.8.2014, GERC
Open Access Regulations, 2011 and First Amendment thereto would apply
to the petitioner.
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3.9 After the Second Amendment to Open Access Regulations coming into
effect, the transmission charges are recoverable based on actual scheduled
energy and accordingly, SLDC has been recovering transmission charges
from the petitioner and other customers as per the actual scheduled
energy. However, prior to coming into effect of the above amendment, the
transmission charges are to be paid based on the maximum reserved
capacity. It is undisputed that the period in question i.e. 2012-13 and 201314 are prior to the notification of Second Amendment and therefore the
provisions of the Second Amendment cannot be applied to such period.
The above position has also has been upheld by the Commission vide Order
dated 24.3.2015 in Petition No. 1440/2014.
3.10 Further, letters dated 14.3.2015 and 8.4.2015 issued by the respondent are
consistent with the GERC Open Access Regulations, 2011 and amendments
thereto. The petitioner has not disputed the calculation of the levy of
transmission charges,
but disputed the principle of determination of
maximum reserved capacity for levy of charges as opposed to scheduled
energy. The principle of determination of maximum reserved capacity has
been applied only to the period prior to 14.8.2014 i.e. prior to coming into
Page 13
force of the Second Amendment to the GERC Open Access Regulations,
2011.
3.11 As regards the issue of payment of transmission charges, it was to be
settled by the power exchange and in the absence of such settlement, the
payment is to be made by the STOA customer and accordingly the invoices
were raised on the petitioner. Moreover, it is also clarified that once the
capacity is reserved, the transmission charges are payable irrespective of
whether the line has been used or not. The said principle is also recognised
in the Open Access Regulations, which provide for transmission charges as
per the reserved capacity. Therefore, SLDC is entitled to recover the
transmission charges as determined by the Commission.
3.12 Moreover, the Open Access Regulations, 2011 prior to 14.08.2014 provided
for transmission charges on maximum reserved capacity. Therefore even if
the consumer did not use the transmission line, the consumer was required
to pay the transmission charges for the capacity reserved for him. The
regulations provide for recovery of transmission charges from the STOA
customers at maximum reserved capacity (for the period prior to
14.08.2014) and therefore the recovery of transmission charges for the
reserved capacity is valid and legal.
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3.13 It is further submitted that the interpretation of the petitioner that
scheduled capacity is reserved capacity is wrong and denied. The
maximum reserved capacity is not determined on a day to day basis but it
is the capacity reserved by the STOA customer for the period of open
access, namely, the capacity for which NOC has been granted by SLDC. The
capacity placed on bid by the petitioner and accepted by the power
exchanges is not the reserved capacity under open access but the capacity
sought to be purchased under open access. SLDC has granted NOC for the
capacity of 5.4 MW for the petitioner for the period of 1.04.2012 to
31.03.2014 and this is the capacity that has been reserved by SLDC for the
petitioner for the power transfer allowed to a short term customer, which
is also clear from the definition of the reserved capacity.
3.14 It is submitted that there is no rationale for linking collection of
transmission charges with existence of final power purchase agreements,
particularly when the open access Regulations, 2011 clearly provide for
recovery of transmission charges on reserved capacity. The petitioner has
been granted a No Objection for certain capacity which is the reserved
capacity and the open access Regulations provide for recovery of
transmission charges on such capacity by SLDC. The NOC of the petitioner
Page 15
has not been cancelled and therefore the recovery of transmission charges
is legal and valid.
3.15 Based on the above submissions, the respondent SLDC submitted that
there is no merit in the present petition and the same be dismissed with
costs.
[4] The matter was heard by the Commission on 7.11.2015, 21.11.2015,
8.12.2015, 19.12.2015 and finally on 22.01.2016.
[5] Learned Advocate Shri Ramachandran, on behalf of the respondent, raised
the preliminary objections that the present petition is not admissible and
maintainable as the issue emerged for the decision of the Commission in
the present petition is already covered in the order dated 24.03.2015 in
case of Gujarat Granito Manufacture Association Vs. SLDC.
5.1 The petitioner has raised extraneous issues on determination of
transmission charges for short term open access which are outside the
scope of the present petition.
5.2 The principle of determination of transmission charges under STOA
regulations cannot be challenged in the present proceedings. The open
access customer is liable to pay transmission charges as determined in
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accordance with GERC (Terms and Conditions of Intra-state Open Access)
Regulations, 2011.
5.3 The petitioner sought open access on transmission facility to procure
power through energy exchange. The consent/no objection was issued by
the respondent for 5.4 MW capacity to the petitioner considering the
surplus capacity available after allotment to the long term and medium
term open access consumers.
5.4 Once the open access is granted to the petitioner such capacity is reserved
for him and the same is deducted from the available surplus capacity while
granting open access to the subsequent applicants. Therefore, the claim of
the petitioner that there is no access granted in case of STOA or there is no
concept of reserved capacity is not legal and valid. The consent/NOC
granted by SLDC is for a certain capacity which is a reserved capacity for
open access customer.
5.5 The transmission charges applicable for open access on State Transmission
network are determined and decided by this Commission as per the GERC
(Terms and Conditions of Intra-state Open Access) Regulations, 2011.
Regulation 21(2) (ii) of the principal Regulations as well as the first
amendment thereto provide that the transmission charges for Short Term
Open Access shall be payable on the basis of maximum capacity reserved
Page 17
for the customers. The said Regulations were amended by the Commission
on 14.08.2014. Regulation 21(2) (ii) was amended whereby the
transmission charges are payable based on the actual scheduled energy
and accordingly SLDC has been recovering the transmission charges from
the open access customers as per the actual scheduled energy from the
effective date of the aforesaid amendment, i.e. 14.08.2014.
5.6 Prior to 2nd Amendment in the principal Regulations, the transmission
charges were payable by the short-term open access customers based on
the maximum reserved capacity.
5.7 SLDC raised the invoices on the petitioner for the period FY 2012-13 and
2013-14, i.e. for the period prior to 14.08.2018 based on the provisions of
Open Access Regulations prevailing at the relevant times.
5.8 The transmission charges were to be settled by the power exchanges.
However, in the absence of such settlement the payment is to be made by
the Short Term Open Access customers and accordingly the invoices have
been raised by the respondent on the petitioner. SLDC is entitled to recover
the transmission charges as per the provisions of the GERC (Terms and
Conditions of Intra-state Open Access) Regulations, 2011.
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5.9 The principal liability of transmission charges payment is of the open access
customer irrespective of whether the line has been used or not by the open
access customer once the capacity is reserved for the open access
customer. Once the capacity is allocated to the open access consumer, he is
liable to pay transmission charges in accordance with the prevailing
Regulations. The open access consumer even if he does not use the
transmission line, he is required to pay the transmission charges.
5.10 There is a violation of the CERC Open Access Regulations by the petitioner.
The principal Regulations of CERC (Open Access in Inter-State
transmission) Regulations, 2008, first amendment dated 20.05.2009 and
2nd Amendment dated 13.09.2013 recognised that the open access
customer when availing the open access on Inter-State transmission
network and also Intra-State transmission network has to pay the
transmission charges for use of State transmission network as determined
by the State Electricity Regulatory Commission in addition to the other
transmission charges. The Commission has already determined the
transmission charges in accordance with the GERC (Terms and Conditions
of Intra-state Open Access) Regulations, 2011 from time to time. Therefore,
the petitioner is liable to pay the transmission charges accordingly.
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5.11 The maximum reserved capacity is not determined on day to day basis but
it is the capacity reserved for the Short Term Open Access for the period of
open access for which NOC has been granted by SLDC. The capacity placed
on bid by the petitioner and accepted by the power exchange is not the
reserved capacity under open access but the capacity sought to be
purchased under open access. SLDC has granted NOC for the capacity of 5.4
MW to the petitioner for the period from 1.04.2012 to 31.03.2014 and this
capacity has been reserved by SLDC for the petitioner.
5.12 The respondent denied that STOA customers were to be charged on the
basis of actual energy scheduled because the GERC (Terms and Conditions
of Intra-State Open Access) Regulations, 2011 provide that the
transmission charges were payable on maximum reserved capacity. There
is no relationship between the quantum of transmission charges per unit
and the capacity reserved. Transmission charges are payable as provided
under Open Access Regulations, 2011 which is applicable and binding to all
concerned entities. SLDC is entitled to receive the transmission charges as
per the provisions of Open Access Regulations, 2011.
5.13 The concept of surplus capacity at low priority is relevant at the time of
allocation of short term open access. Once the consent or NOC is granted
for STOA customer such capacity becomes reserved capacity as per the
Page 20
Open Access Regulations, 2011 and it is blocked for such customer. Merely
because the NOC does not use the term reserved capacity, it does not
negate the clear provisions of the Open Access Regulations, 2011. NOC has
been granted to the petitioner for drawl of certain capacity and the same
has become his reserved capacity in terms of the Open Access Regulations,
2011.
5.14 There is no rationale for linking collection of transmission charges with
existence of final power purchase agreements. It is not open to the
petitioner to act in contravention of provisions of Open Access Regulations,
2011. No Objection of the petitioner has not been cancelled nor he has
surrendered the unused capacity and therefore, the recovery of
transmission charges is legal and valid as per the then prevailing
Regulations. The price at which power is available in power exchange is
not the issue. The petitioner is not entitled to challenge the principle laid
down in the Open Access Regulations, 2011 in the present proceedings.
The provision for relinquishment is only for long term or medium term
open access and the same is not relevant in the present case. SLDC cannot
be deprived of the legitimate transmission charges due to financial
difficulties faced by the petitioner. In support of the above submission the
Respondent relied upon the Order dated 24.03.2015 passed by the
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Commission in Petition No. 1440 of 2014 in case of Gujarat Granito
Manufacture Association Vs. SLDC and others.
[6] Shri Vikram Shah on behalf of the petitioner, submitted that the order
dated 24.03.2015 passed in petition No. 1440 of 2014 by the Commission is
challenged by filing Appeal No. 247 of 2015 by Gujarat Granito
Manufacture Association before the Hon’ble APTEL and the same is already
admitted by the Hon’ble APTEL.
6.1 The petitioner has raised the issue under Regulation 45 of GERC (Terms
and Conditions of Intra-State Open Access) Regulations, 2011 viz. Power to
Remove Difficulties. Therefore, the issue cannot be termed as extraneous.
As per the present Regulations the NOC to STOA customers can be
cancelled. There is nothing like constraint in the power network and NOC
granted to all applicants. So there is nothing like reserved capacity when
the NOC is granted to STOA applicants. The transmission charges should be
collected for the energy approved for transmission as per Clause 16 (2) of
CERC Open Access Regulations, 2008. As per the said Regulation the
transmission
charges
should
be
collected
on
approved
energy
transmission. When no energy is received under STOA, no charges are
payable by the STOA customer. The amendment made in Regulation 20(6)
of the CERC principal Regulations provides that no charges other than
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those specified in the said Regulations shall be payable by any person who
is granted STOA under this Regulation.
6.2 The invoices issued by SLDC are arbitrary. SLDC had not originally
demanded any transmission charges on the basis of so called reserved
capacity but sudden recovery is demanded with back effect which is not
legal as the goods produced in related time with power cost consideration
as per prevailing billing is a non-reversible process and payment at such
stage will add to the difficulties faced by the steel manufacturing units who
are just surviving the closure of units. The petitioner has not procured the
power under STOA for due to lay-off given to the employees in the
petitioner’s unit. Also the bills issued by the respondent are without any
detailed calculations.
6.3 The transmission charges are to be settled by IEX. The power exchange is
asked to pay the transmission charges for non-traded or under traded
quantity of power by SLDC but the same is denied by IEX vide letter dated
3.04.2014 and 9.04.2014 stating that the collective transactions are InterState in nature and the State network used in conjunction with the InterState network. Therefore, the SLDC can recover the transmission charges
for power actually traded by the STOA consumer.
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6.4 As per the definition of transmission, if no conveyance of electricity is
made then the transmission charges cannot be recovered. As per CERC
Regulations the STOA customer can use the network only if surplus
capacity is available on the Inter-State transmission system. The IntraState transmission system is used in conjunction with the Inter-State
transmission system by the STOA customers for transactions on power
exchanges. Therefore, when the Inter-State line is not available in that case
the Short-term open access customer has not to pay the transmission
charges.
6.5 As per Regulation 21(2) (i) of the GERC (Terms and Conditions of Intrastate Open Access) Regulations, 2011 the total transmission cost is to be
divided amongst all long term and medium term open access customers as
the STOA consumers are not creating extra burden for the STU. The
recovery of transmission charges from STOA customers who have availed
power under collective transactions for the under or non-utilized capacity
approved under NOC is against the CERC Regulations. The collective
transactions are governed by the CERC Regulations. Therefore, the
transmission charges are recoverable as per the CERC Regulations. The
term reserved capacity which can be cancelled by SLDC at any time, if there
is congestion in the system as happened in past can be considered as
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reserved or not is to be decided by the Commission and the same is
applicable to the STOA consumers who are availing power from the energy
exchange under collective transactions is to be decided.
6.6 Based on the above, he submitted that the Commission may grant the
prayers of the petitioner.
[7] Considering the submissions made by the parties the following issues
emerged for the decisions of the Commission:
(i) Whether the invoices raised by the respondent SLDC for FY 2012-13
and 2013-14, are legal and valid.
(ii) Is the petitioner entitled for refund of all the payments collected under
STOA charges for the reserved capacity for non-traded and short traded
days by SLDC.
(iii) Is any directions to SLDC and GETCO necessary for recovery of charges
from open access customers and whether such recovery requires prior
approval from the Commission.
[8] We have carefully considered the submissions made by the parties. We
note that the petitioner had obtained STOA during FY 2012-13 and 201314 for procurement of power through energy exchange. It is also
Page 25
undisputed between the parties that the petitioner had paid the
transmission charges at relevant time for the STOA granted by SLDC.
8.1 The issue emerged in the present petition is with regard to the claim
raised
by
the
respondent,
SLDC
vide
invoice
No.
SLDC/12-
13/STOA/190/dated 16.04.2015 for the period 1.04.2012 to 31.03.2013
for an amount of Rs. 71,099/- and invoice vide invoice No. SLDC/1314/STOA/554/dated 28.01.2015 for the period from 1.04.2014 to
31.03.2015 for an amount of Rs. 15,22,925/-. The aforesaid invoices raised
by the respondent on the ground that the STOA charges recovered by them
were only for the days on which the petitioner had carried out the
transaction and not for entire period for which SLDC, Gujarat has issued
NOC. It is also stated that as per the GERC (Terms and Conditions of Intrastate Open Access) Regulations, 2011 the petitioner is liable to pay the
transmission charges on the basis of maximum reserved capacity.
Therefore, the petitioner is required to pay the transmission charges for
the period which was not paid by it.
8.2 The petitioner raised the following issue:
(i) the transmission charges are applicable and permissible to be collected
only if the energy is transmitted through the transmission lines.
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(ii) As per CERC (Grant of Connectivity, Long-term Access and Mediumterm Open Access in Inter-State Transmission and related matters) (first
amendment) Regulations, 2009 the STOA charges are decided based on
total power required to be transmitted by LTOA and MTOA and hence no
charges are to be collected from STOA customers for non use of lines.
(iii) As per Regulation 21(2)(i), of the GERC (Terms and Conditions of
Intra-state Open Access) Regulations, 2011, the total transmission cost to
be shared by LTOA and MTOA. The STOA customer is required to pay the
charges for the spare capacity available in the transmission lines at a
particular time when power is transmitted for him.
(iv) As per the Minutes of Meeting dated 24.11.2011 issued by the
Commission, the collective transactions are to be dealt with in accordance
with the CERC Intra-State Open Access Regulations. As per CERC
Regulations no transmission charges are payable other than what is
specified by the CERC.
8.3 As the issues raised by the petitioner, are interwoven, we decide the same
together. The petitioner has raised the issue that the transmission charges
are payable only when the transmission of energy takes place in the
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transmission system. He referred the definition of “transmit” given in subsection 74 of Section 2 of the Electricity Act, 2003 which reads as under:
"transmit" means conveyance of electricity by means of transmission lines
and the expression "transmission" shall be construed accordingly;
8.4 As per the aforesaid definition transmit/transmission is a conveyance of
electricity by means of transmission lines. The said definition is silent on
transmission charges. The Electricity Act, 2003 is also silent on the
definition of transmission charges. The transmission charges are recovered
by the transmission licensee as per the GERC (Terms and Conditions of
Intra-state Open Access) Regulations, 2011 and amendments thereto. The
concept of transmission charges is incorporated in the Regulations to
enable the transmission licensee to recover the cost of services provided
by it through the intra-state transmission infrastructure created by it. The
transmission network created by the transmission licensee/STU/CTU is
used by the beneficiaries for the Long Term, Medium Term or Short Term
periods. Therefore, the Commission has notified the GERC (Terms and
Conditions of Intra-state Open Access) Regulations, 2011 which mandated
the transmission licensee to allow non discriminatory open access to the
open access customer for the Long Term period, Medium Term period or
Short Term period. The transmission licensee incurs the cost for creation
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of the transmission network for evacuation of power from one place to
another place (point of injection to point of drawl). The licensee is eligible
to recover the cost incurred by it from the beneficiaries who utilise its
network, which is approved by the Commission in the ARR/tariff petition
filed by the transmission licensee. Moreover, the beneficiaries of such
transmission network reserve the capacity in the network for different
periods, i.e. long–term, medium term or short term. Once the capacity is
reserved by the beneficiaries it is the duty cast upon the licensee to keep it
reserved for such beneficiaries. Therefore, if the beneficiaries reserve the
transmission network and do not utilise it and do not pay the charges due
to non-utilisation, it leads to a situation that the transmission licensee
though eligible for recovery of the charges against the cost incurred by it
for the creation of the transmission network is deprived of the recovery of
such cost or the transmission charges are to be recovered from the
consumers who utilise the transmission network at the rate higher than
what is approved by the Commission to make up for the shortfall due to
non-payment of transmission charges by such the open access customers,
as the transmission licensee is revenue neutral to the extent of ARR
approved by the Commission. The content of petitioner that the
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transmission charges are payable only if the network is utilised by the
beneficiaries is thus illegal and not valid.
8.5 We further note that the transmission charges are recoverable from the
long term, medium term or short term open access customer by the
transmission licensee/STU for utilisation for Intra-State transmission
network as per the Regulations of the Commission. The relevant provisions
of the principal Open Access Regulations notified by the Commission on
1.06.2011 read as under:
“21.Transmission Charges
Open Access customer using transmission system shall pay the charges as
stated hereunder:
(1)
For use of inter-State transmission system :
As specified by the Central Commission from time to time.
(2)
For use of intra-State transmission system :
(i)By Long-Term and Medium-Term Open Access Customers:
The Total Transmission Cost (TTC) as determined by the Commission
in the Annual Transmission Tariff Order of the STU shall be shared
by all long-term and medium-term open access customers on monthly
basis (including existing Distribution Licensees) in the ratio of their
allotted capacities, in accordance with the following formula:
Monthly Transmission Tariff (MTT) = TTC/(ACs x 12) (in
Rs./MW/month);
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Where;
TTC = Total Transmission Cost determined by the Commission for
the transmission system for the concerned year (in Rs), and
ACs = sum of capacities allocated to all long-term and medium-term
open access customers in MW.
Provided that Monthly Transmission Tariff shall also be shared by a
Generating Company if power from such Generating Company is sold
to a consumer outside the State of Gujarat, to the extent of capacity
contracted outside the State:
Provided further that the transmission tariff payable by any long-term
or medium-term open access customer utilizing the transmission
system for part of a month shall be determined as under:
Transmission Tariff = TTC/(ACs x 8760) (in Rs./MWh);
Where;
TTC = Total Transmission Cost determined by the Commission for
the transmission system for the relevant year (in Rs), and
ACs = sum of capacities allocated to all long-term and medium-term
open access customers in MW.
Provided that where a dedicated transmission system used for open
access has been constructed for exclusive use of an open access
customer, the transmission charges for such dedicated system shall be
worked out by transmission licensees for their respective systems and
got approved by the Commission and shall be borne entirely by such
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open access customer till such time the surplus capacity is allotted
and used by other persons or purposes.
(ii)By Short-Term Open Access Customers:
Transmission Charges payable by a Short-Term Open Access
customer shall be at a rate one-fourth of the transmission charges
applicable to the Long-Term / Medium-Term customer, as described
above.
Transmission charge payable by Short-term open access customers
=
1
4
× Rate of transmission charge payable by long-term /
medium-term open access customers
Provided that the Transmission charges payable by Short–term open
access customers for use of the system for part of a day shall be as
follows:
(a) Upto 6 hours in a day in
one block
=
(b) More than 6 hours and
upto 12 hours in a day in
one block
=
(c) More than 12 hours upto
24 hours in one block
=
1
( ×
4
short-term
open
access rate)
(
𝟏
𝟐
× short-term open
access rate)
short-term open access
rate
Provided that transmission charges for short-term open access shall be
payable on the basis of maximum capacity reserved for such
customer.”
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8.6 Thus, the transmission charges are payable by the long term and medium
term open access consumers, as per Regulation 21(2)(i), on the capacity
reserved for long term and medium term open access customer as per the
formula given in the aforesaid Regulations.
8.7 Moreover, the Regulation 21(2) (ii) of the aforesaid Regulations provides
that the STOA customer shall pay the transmission charges @ 1/4th of the
rate of transmission charges payable by long term or medium term open
access customers. The proviso to the said Regulation provides that the
transmission charges are payable for part of a day at the rate specified in
the table contained in the said Regulation. The 2nd provisio to the said
Regulation provides that the transmission charges are payable by the SOTA
customers on the basis of maximum capacity reserved for such customers.
8.8 The petitioners have referred Regulation 16 of CERC (Open Access in InterState Transmission) Regulations, 2008, which reads as under:
Transmission Charges
16. (1) In case of bilateral transactions, for use of the inter-State
transmission system, the transmission charges at the rate specified
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hereunder shall be payable by the applicant for the energy approved for
transmission at the point(s) of injection:
Type of Transaction
Transmission charges
(Total (Rs./MWh)
(a) Bilateral, intra-regional
30
(b) Bilateral, between adjacent regions
60
(c) Bilateral, wheeling through one or more intervening regions 90
(2) In case of the collective transaction, for use of the inter-State
transmission system, transmission charges at the rate of Rs.30/MWh for
energy approved for transmission for each point of injection and for each
point of drawal shall be payable.
(3) The intra-State entities shall additionally pay transmission charges for
use of the State network as determined by the respective State Commission:
Provided that in case the State Commission has not determined the
transmission charges, the same shall not be a ground for denial of open
access and charges for use of respective State network shall be payable for
the energy approved at the rate of Rs.30/MWh:
Provided further that transmission charges for use of the State network shall
be intimated to the Regional Load Despatch Centre concerned for display on
its web site:
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Provided also that transmission charges shall not be revised with
retrospective effect.
Regulation 16 (2) provides that in case of the collective transaction, for use
of Inter-State transmission systems, transmission charges are payable at
the rate of Rs. 30/MWh for energy approved for transmission for each
point of injection and each point of drawl.
Regulation 16 (3) provides that in case of Intra-State, the open access
customer shall pay additional transmission charges for use of State
network as determined by the respective State Commission.
The first proviso of the said Regulation provides that in case the SERC has
not determined the transmission charges, the same shall not be a ground
for denial of Open Access and charges for use of respective State Network
shall be payable for the energy approved at the rate of Rs. 80/MWh. Thus,
the
aforesaid
Regulation
recognizes
that
when
the
Intra-State
Transmission network is utilized, the Open Access customers shall pay the
transmission charges either at the Rate of Rs. 80/MWh if no charges are
determined by SERC concerned else it shall pay as per the transmission
charges determined by the respective State Commission.
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8.9 We further note that, the petitioner relied upon Clause 16 of CERC (Open
Access in Inter-State transmission) (first amendment), Regulation 2009
and the CERC (Open Access in Inter-State transmission) (Second
amendment), Regulation 2013 and submitted that in case of collective
transactions only CERC Regulations are applicable and no other charges
are payable by the STOA customers. It is necessary to refer the said
Regulation which reads as under:
16. (1) In case of bilateral transactions, the transmission charges at the rate
specified hereunder shall be payable by the short-term customer for the
energy approved for transmission at the point or points of injection:
Type of Transaction
Transmission charges(Total)(Rs./MWh)
(a) Bilateral, intra-regional
80
(b) Bilateral, between adjacent regions
160
(c) Bilateral, wheeling through one or more intervening regions
240
(2) In case of the collective transactions, transmission charges at the rate of
Rs. 100/MWh for energy approved for transmission separately for each point
of injection and for each point of drawal, shall be payable.
Page 36
(3) The intra-State entities shall pay the transmission charges for use of the
State network as fixed by the respective State Commission in addition to the
charges specified under clauses (1) and (2):
Provided that in case the State Commission has not determined the
transmission charges, the charges for use of respective State network shall be
payable at the rate of Rs.80/MWh for the electricity transmitted:
Provided further that non-fixation of the transmission charges by the State
Commission for use of the State network shall not be a ground for refusal of
open access:
Provided also that the transmission charges payable for use of the State
network shall be conveyed to the Regional Load Despatch Centre concerned
who shall display these rates on its web site:
Provided also that the transmission charges payable for use of the State
network shall not be revised retrospectively.”
8.10 The aforesaid Regulation states that no charges are leviable/recoverable
from the open access consumers other than what is specified in the said
Regulation of the CERC. Prior to deciding this issue, we clarify that
whenever any provisions of the Act/Rules or Regulations framed there
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under is decided to be applied, it is necessary to refer other relevant
provisions on the same subject matter also if any provided in the said
Act/Rules or Regulations, and then decide the issue with combined reading
of such provisions. Regulation 16 of the CERC Regulations as referred
above, provides that the transmission charges for utilization of Inter-State
network is as per CERC Regulations and for utlisation of Intra-State
network, the same is as per the Regulations notified by the SERCs or as per
the aforesaid CERC Regulations if the SERC has not determined the
transmission charges. Therefore, the contention of the petitioner that no
charges are leviable other than the CERC Regulations is not legal and valid
as the CERC Regulations itself recognize the recovery of transmission
charges by SLDC for utlisation of Intra-State network as determined by the
State Electricity Regulatory Commission. Therefore, the aforesaid
contentions of the petitioner is not acceptable and the same is rejected.
8.11 The petitioner contended that the no capacity is reserved for STOA
customers. In STOA the schedule is determined from time to time based on
the demand and supply. The STOA customer is committed to scheduled
capacity which in effect is the reserved capacity and not NOC quantum. The
STOA customer is required to be charged on the basis of energy scheduled.
As the issue is raised with regard to the reserved capacity by the petitioner,
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it is necessary to refer the definition of reserved capacity defined in the
GERC (Terms and Conditions of Intra-state Open Access) Regulations,
2011, which reads as under:
“Reserved Capacity” means the power transfer in MW between the specified
point(s) of injection and point(s) of drawal allowed to a short-term customer
on the transmission/distribution system depending on availability of
transmission/distribution capacity and the expression "reservation of
capacity" shall be construed accordingly;
8.12 As per the aforesaid definition the power transfer in MW between the
specified point of injection and point of drawl to a STOA customer
depending upon the availability of capacity in transmission/distribution
network is the reserved capacity. Therefore, the reserved capacity is
specifically recognized as the availability of capacity to STOA customer in
the existing transmission /distribution network. Therefore, any contention
against it pleaded by the petitioner is not acceptable and the same is
rejected. We further clarify that the schedule of energy given by the open
access customer is with consideration of the capacity reserved for him.
There may be mismatch between the actual schedule and actual drawl,
which is dealt through commercial mechanism in energy accounting
prepared by SLDC. The scheduling of energy is also required to be done by
the LTOA and MTOA customers. Scheduling has no linkage with the
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transmission charges payable by the open access customers and once the
capacity is reserved for such customers they have to pay for it irrespective
of its usage. On this count also the plea of the petitioner that no capacity is
reserved for STOA customer is not acceptable and the same is rejected.
8.13 The petitioner contended that when the rate quoted by him was not
commercially viable or bid submitted in the exchange did not get clear in
that case there was under utilisation or non utilisation of Intra-State
transmission system booked by the STOA customer. Moreover, the
petitioner himself did not avail the STOA for some days due to lay off
declared by the petitioner or due to non working day/weekly off of the
petitioner’s company resultantly there was no utilisation or under
utilisation of the transmission network by the petitioner. When there is no
or under utlisation of network, the claim of the respondent SLDC for
transmission charges is illegal and arbitrary. In this regard, we clarify that
once the STOA is allowed to the open access customer as per the GERC
(Terms and Conditions of Intra-State Open Access) Regulations, 2011 it is
necessary for the licensee to keep the capacity reserved for such customer
irrespective of whether the network is utilised by such customer or not. In
case of non-utilisation of network or under-utilisation of network the open
access customer is liable to pay the transmission charges for the reserved
Page 40
capacity as per the Regulations notified by the Commission. We, further
note the contention of the petitioner that he has underutilized or not
utilized the capacity reserved for him when lay off was granted or there
were non working/weekly off days of their organization. We, note that
there is no evidence on record to substantiate that the petitioner
surrendered the reserved capacity on those particular days or time during
the period of STOA granted to him by the respondent. Had the petitioner
surrendered his reserved capacity during those days, the respondent could
have allocated such unused reserved capacity to another STOA customer to
optimize the utilisation of the licensee’s network. However, the evidence
on record does not support the allocation of surrendered capacity to
another STOA customer. In the absence of surrender of the unused capacity
by the petitioner, the respondent was unable to spare such capacity to
other beneficiaries, and hence the claim of the petitioner that he is not
liable for the transmission charges on such unused capacity is not legal and
valid. Once the STOA demanded by the open access customer is granted by
the licensee and SLDC by issuing NOC, such capacity is reserved for him.
Therefore, short utilization or non-utilisation of the reserved capacity by
the STOA customer does not exempt him from the payment of transmission
Page 41
charges and he is liable to pay the transmission charges for the reserved
capacity as claimed by the respondent.
8.14 We note that the claim of the respondent for FY 2012-13 of Rs. 71,099 and
FY 2013-14 of Rs. 15,22,225/- as per the invoices raised by him is for
recovery of transmission charges for the capacity reserved for the
petitioner under STOA. The petitioner failed to prove that the respondent
did not allow him the STOA during the aforesaid period for particular days
or months in the FY 2012-13 and 2013-14 when there was non-utiliastion
or under utilisation of the allocated capacity and therefore, the claim of the
respondent for the STOA charges is legal and valid. In the absence of above
we note that there is no merit in the submission of the petitioner for nonpayment of transmission charges claimed by SLDC. On this ground also the
contention of the petitioner that he is not liable to pay the STOA charges
claimed by the respondent through invoices raised on him is not
acceptable and the same is rejected.
[9] Based on the above observations, we decide that the issues raised by the
petitioner to declare the claim of STOA charges by the respondent SLDC
through the invoices for FY 2012-13 and FY 2013-14 as illegal and direct
the respondent SLDC to refund the amount collected under STOA charges
Page 42
for reserved capacity for non-traded and short traded days are not
acceptable and the same are rejected.
[10] In view of above observation, we decide that the present petition is devoid
of merit and the same is dismissed.
[11] With this order the present petition stands disposed off.
[12] We order accordingly.
Sd/-
Sd/-
[P.J.THAKKAR]
[K.M.SHRINGARPURE]
MEMBER
MEMBER
Place: Gandhinagar.
Date: 07/07/2016.
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