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TMI Blog2020 (8) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... as incumbent upon the State of Rajasthan to provide coal from any other source for the project, in case the Central Government could not allot coal linkage/coal block. The Central Government had even written to the Government of Rajasthan to provide coal to APRL from the coal mine, but due to paucity, it could not be supplied to APRL. Thus, there was a failure on the part of the Government of Rajasthan to provide coal from any other source. The NCDP of 2007 prevailed as law 7 days prior to the bid with respect to the supply of coal, the cut-off date of the bid was 30.7.2009. It is apparent that 100 percent of the quantity as per the consumers' normative requirement was to be made by CIL, obviously on the approval of the application by the Standing Linkage Committee. It was kept pending due to a shortage of coal supplies and was ultimately processed under the SHAKTI Policy, and linkage for 100 percent was given from January 2018. Thus, earlier as the quantity of coal was not available, sufficient supply could not be made. It is not a case where APRL was adjudged ineligible, but prior commitments and the non-availability of coal came in the way of failure to obtain domestic coal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and to reduce the liability of the Appellants-Rajasthan DISCOMS, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the Appellants-Rajasthan DISCOMS to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interest would be compounded per annum.
Conclusion - i) APRL's bid was based on domestic coal, and the non-availability of domestic coal due to changes in the NCDP constituted a change in law. ii) APRL's entitlement to compensation for the shortfall in domestic coal supply confirmed and it is directed that Rajasthan DISCOMS to calculate and pay the compensation.
Appeal disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... e coal from Parsa East and Kente Basan coal block. 7. On 21.5.2008, it was conveyed to APRL that the State will make the best efforts to facilitate for getting coal linkage from the Government of India. It was informed that it would not be possible to supply coal from Parsa East and Kente Basan coal blocks as they barely meet RVUN projects' requirements. APRL repeated the request on 28.5.2008, 9.6.2008, 11.6.2008, and 16.6.2008. On 29.8.2008, a request was made to the Government of Rajasthan to advise RVUN to enter into an MoU and to apply to the Ministry of Coal for allocation of coal blocks to the Kawai Project under the Government Dispensation Scheme. 8. On 25.2.2009, a Request for Proposal (for short, 'RFP') was issued by Rajasthan Rajya Vidyut Prasaran Nigam Limited (for short, 'RVPN') for procurement of power for long-term through tariff-based competitive bidding process under Case-1 bidding procedure for meeting the base load requirement of the procurers. 9. On 19.3.2009, a request was made by AEL to the Government of Rajasthan to extend the validity of the MoU for one year. On 2.4.2009, a Standard Bidding Document for Case-1 was notified by the Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unication to RVPN. Because of the support offered by the Government of Rajasthan regarding the development of the Kawai Project, the levelized tariff was being reduced by 1 paisa to Rs. 3.238 Kwh. On 17.12.2009, pursuant to the bid submitted, an LoI was issued by RVPN to APRL. On 18.12.2009, an unconditional acceptance was communicated to RVPN. 15. On 28.1.2010, APRL executed the PPA with three procurers, namely, Jaipur Vidyut Vitran Nigam Limited, Jodhpur Vidyut Vitran Nigam Limited, and Ajmer Vidyut Vitran Nigam Limited, for the supply of aggregate contracted capacity of 1200 MW. The PPA postulates domestic coal usage as the primary fuel, while imported coal may be used as a backup arrangement. 16. On 15.2.2010, APRL conveyed to the CMD-RRVUNL for getting the allocation of captive coal block for the supply of coal to the Kawai Power Project and conveyed confirmation to accept washed coal. 17. On 20.2.2010, AEL conveyed to the Government of Rajasthan that it would supply 91 per cent power from the Kawai Project to the Jaipur Vidyut Vitran Nigam Limited, Jodhpur Vidyut Vitran Nigam Limited, and Ajmer Vidyut Vitran Nigam Limited-Rajasthan DISCOMS, with whom the PPA was entered in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice, w.e.f. 11.9.2011, the cost of imported coal has risen too high to make the use of imported coal prohibitive. In case an early arrangement of coal linkage or allotment of captive coal was not made, the operation of the Government's projects would be hampered. On 5.11.2012, the Government of Rajasthan informed that there was no surplus coal in Parsa East and Kente Basan coal blocks, which could be allocated to the Kawai Project. However, the Government of Rajasthan on 22.11.2012, wrote a letter to the Ministry of Power and Ministry of Coal informing that Rajasthan DISCOMS have executed long-term PPA with APRL. It was stated that in case long-term coal linkage was not provided, then the State would be deprived of 1200 MW power at competitive rates, and Rajasthan was already facing an acute shortage. On 26.11.2012, another letter was written by the Government of Rajasthan for allocating coal linkage to 12th Five Year Plan Projects. 22. As no coal linkage was granted, on 24.4.2013 AEL filed a Petition No. 392 of 2013 before the State Commission claimed compensatory tariffs for the higher cost of coal. Ultimately, the Standing Linkage Committee (Long-Term) of the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration'). 25. Shri. C. Aryama Sundaram, learned Senior Counsel urged the following arguments: (a) APRL cannot claim any compensation for the use of imported coal for the supply of power either before January 2018 or after that as the use of such imported coal was as per the bid submitted by APRL and was covered as a part of its quoted tariff. (b) According to the bid documents submitted and the PPA entered into pursuant to it, demonstrate that APRL had duly stipulated and agreed for the imported coal also as a fuel source and quoted the tariff-based thereon. (c) Without prejudice to the aforesaid, there was no change in law as APRL could have claimed no compensation. Even as per its best case, APRL could not be entitled to relief in relation to 100 percent coal requirement, but could only claim concerning the balance percentage, after considering the quantum under the FSA dated 25.6.2009 for imported coal. (d) There is no computation, no determination of methodology or formula for the computation of the compensation; the same is required to be undertaken with verification of quantification of coal, parameters, computation of coal costs, etc. APRL cannot be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, it was submitted by APRL that bid should be evaluated on the basis of domestic coal tie-up, and an undertaking was given that the payment considering 'domestic coal escalation' would be acceptable to it during the term of the PPA. (d) On 17.12.2009, Rajasthan DISCOMS informed APRL that rates mentioned at Annexure 1 (to provide 1200 MW power) and escalations thereof on domestic coal is based on APRL's commitment that the above rates would be applicable even if coal requirement is met by way of a backup arrangement with imported coal. APRL gave an unconditional acceptance on 18.12.2009. (e) Reliance was placed on the order dated 31.5.2010, passed by the Rajasthan Electricity Regulatory Commission (for short, 'the RERC'). The APTEL failed to comprehensively consider the PPA and other documents. The bid documents also formed part of the PPA entered into between the parties. (f) The NCDP of 2007 did not create a vested right to get domestic coal even for those who did not have the LoA/FSA or recommendation of the Standing Linkage Committee (Long-Term). Our attention has been invited to Clauses 2.1 and 2.2 of the NCDP of 2007 and approval of the Standing L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only on domestic coal. (ii) The submission of the imported coal agreement submitted with the bid was only to indicate that the bidder is eligible for the bid. (iii) Non-availability of domestic coal is a change in law event. (iv) The decision in Energy Watchdog squarely applies to the case, in which it was held that changes in imported coal regime is not a change in law, changes in domestic coal regime is a change in law event. (b) APRL is entitled to carrying cost from the date the change in law event came into force as held by this Court in Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL) and Anr. v. Adani Power Limited and Ors., MANU/SC/0264/2019 : (2019) 5 SCC 325. (c) The bid was premised only on domestic coal. The RFP provides six scenarios for quoting tariffs, and the bidder can submit the bid under any one of the scenarios viz. (i) Captive Coal Block (ii) Linkage Coal (iii) Imported Coal (iv) Imported Gas (v) Domestic Gas and (vi) Hydro. (d) APRL submitted its financial bid as per linkage coal format, i.e., domestic coal. The tariff was allowed to be quoted in linkage coal format applicable to domestic coal. The Government of Rajasthan made consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months of the signing of the PPA. (h) APRL has been continuously supplying power to the Rajasthan DISCOMS since May 2013 without any interruption. Thus, with effect from the change in law, APRL is entitled to compensation as concurrently held. In Re. Whether the bid submitted was premised on domestic coal? 28. Considering the rival submissions, it is necessary to take note of Statutory Guidelines framed by the Central Government Under Section 63 of the Electricity Act. The relevant portion of Para 3.2(II) of the Guidelines of 2005 is extracted hereunder: 3.2(II) In Case-1 procurement, to ensure serious participation in the bid process and timely completion of commencement of supply of power, the bidder, in case the supply is proposed from a station to be set-up, should be required to submit along with its bid, documents in support of having undertaken specific actions for project preparatory activities in respect of matters mentioned in (i) to (v) below. i) **** ii) **** iii) **** iv) Fuel Arrangements: (a) In the following cases fuel arrangements shall have to be made for the quantity of fuel required to generate power from the phase of the power station from which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... installed capacity OR shall have fuel supply agreement for at least fifty percent (50%) of the quantity of fuel required for a term of at least five (5) years or the term of the PPA (whichever is less) to generate power from the generation source for the total installed capacity for the term of the PPA. iii. In case of domestic gas, ..... iv. In case of RLNG, ..... (emphasis supplied) 31. APRL concerning fuel in the bid documents dated 6.8.2009, indicated as under: Domestic Coal: Name of the allocated mine (in case of mine allocation) Not applicable Proven reserves of the mine (in case of mine allocation) Not applicable Quantity of coal required for the power station at Normative Availability on an annual basis and supporting computation for the same: 5.544 MMTPA of domestic coal. Supporting computation attached. Particulars of documents enclosed in support of the above. Adani Group has entered into a MoU with Govt. of Rajasthan (GoR) for development of Kawai Power Project (Copy enclosed). Under this MoU, GoR has assured its support for allocation of captive coal block or coal linkage. The necessary actions in this regard are being taken by APRL and GoR. Imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, in the Bid both Domestic Coal as well as Imported Coal has indicated. You should clarify through a letter from MD/CEO, being full time Director/Manager on which basis of fuel, the Bid should be evaluated. (emphasis supplied) 33. In response to letter dated 7.9.2009, APRL clarified its position vide letter dated 12.9.2009 inter alia as under: 1. As per the provision of the RFP under Clause No. 2.4.1.1(B)(ii), a bidder can submit only one price bid from a generation source, even if different types of fuels are used. We contemplate to use Domestic as well as Imported coal for the Kawai Project. A duly executed Fuel Supply Agreement (FSA) for more than 50% if the coal requirement for a period of 5 years (as specified in RfP for meeting the fuel requirement on the basis of imported coal) has been submitted with the bid. Further, we have also submitted with the bid a MoU, executed between the Government of Rajasthan and Adani Enterprises Ltd., wherein at Clause 2.2, the State has assured in making its best efforts to facilitate in getting Coal Linkage/Block or Coal from any other sources for the Power Project. We meet the fuel requirement on the basis of imported coal tie-u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SUPPLY OF POWER (A) Details of generation source Sl.No. Particulars Details (as per Format 4.13 of the Selected Bid of Seller) 1. Location of power station (Specify place, district and state) Village Kawai, District Baran, Rajasthan 2. No. of existing/proposed units and installed capacity of each unit (in MW) Existing Sl No. No. of Units Installed Capacity COD 1. Not Applicable Proposed Sl No. No. of Units Installed Capacity Expected COD 1. 1 660 MW July 2012 2. 2 660 MW November 2012 3. Primary Fuel Coal 4. Dates of last major R&M (unit wise) Not applicable 5. Duration of Fuel Supply Agreement (FSA) Imported Coal supply FSA for five years and Captive Coal Block/Long Term Coal Linkage 6. Quantum of power contracted with other purchasers, if any (in MW) NIL 7. Details of surplus capacity (in MW) Total Capacity : 1320 MW Net Capacity (after Aux Consumption @ 8% : 1215 MW PPA executed so far : NIL Surplus Capacity : 1215 MW (B) Details of primary fuel Sl.No. Particulars Details (to be furnished by the Bidder) 1. Primary fuel (Insert as applicable: "Domestic coal/Imported Coal/Domestic (pipeline) gas/Imported gas (RLNG)" Domesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coal that APRL, it was mentioned, had entered into an MoU with the Government of Rajasthan for development of the Kawai Power Project. The Government of Rajasthan initially supported the allocation of captive coal block or coal linkage, and APRL and the Government of Rajasthan took the necessary action in this regard. At the same time, it was also made clear that as fallback support, APRL had arranged imported coal for at least 50 per cent of the total requirement. (b) The arrangement of fuel, as per bid, was the responsibility of the bidder/generator. The Generator cannot claim compensation for its inability to arrange domestic coal or any other fuel source. For qualification under the bid, the bidder had to secure documentary evidence for various requirements, including fuel source. For domestic coal, the requirement was of firm arrangement for fuel tie-up and imported coal, acquired mines with proven coal reserves or FSA to meet at least 50 percent of the normative requirement for at least 5 years. APRL did not have any arrangement for the domestic coal at the time of the bid. The FSA dated 25.6.2009 for imported coal was the only firm arrangement with APRL. Besides that, it ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. The FSA was for imported coal with the bid was only to assess bid eligibility. In the order dated 31.5.2010 of the RERC, the domestic coal was considered the basis and to be used as the primary fuel. He also relied upon the admissions made in the affidavit and the communications dated 31.7.2013 and 4.8.2017 and the fact that participation in the SHAKTI Policy was permissible only when the PPA was based on domestic coal. The Rajasthan DISCOMS cannot reprobate from their stand. The entire bid was premised and accepted only on domestic coal. Hence, the claim of APRL cannot be restrained to 40 per cent. When we consider the documents on record, it is apparent that APRL's bid was premised only on domestic coal. It was evaluated as such, and the PPA also records the same. In para 2 of the bid with respect to coal, the bid of APRL was premised on the domestic coal. It is apparent that APRL relied upon MoU entered into with the Government of Rajasthan for development of the Kawai Power Project and other projects, and the Government assured its support for allocation of the captive coal block or coal linkage. An arrangement of FSA relating to imported coal for at least 50 percent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en in favour of Rajasthan DISCOMS and would have resulted in more escalations in the tariff. Thus, APRL could not be denied the benefit of the very foundational basis on which the RERC approved its bid. APRL could not be made to suffer from both the ends. Various documents and the PPA make it clear that its bid was premised on domestic coal and approved tariff was based on domestic coal, the order of RERC is final, conclusive, and binding on the parties; it has not been questioned and attained finality. No stand contrary to the same was permissible to be taken by the Rajasthan DISCOMS. 42. It is further apparent that reply dated 31.7.2013 filed by the Rajasthan DISCOMS before the RERC in which it was clearly admitted that non-availability of domestic coal from the Central Government would put the case of APRL within the scope of change in law. Rajasthan DISCOMS before the RERC admitted that the bid was based on domestic coal, non-availability of which entitles APRL to claim compensation under the change in law as provided in Article 10 of the PPA. 43. It was argued that incorrect admissions made could not have been relied upon. It could not be said to be incorrect and stated fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he FSA was only to demonstrate the raw material's readiness and was not determinative of terms and conditions of the contract. The FSA for imported coal was a standby arrangement, but the entire bid, tariff, and the agreement were based on domestic coal. Thus, the consequences of non-availability due to change in law could not be escaped. In Energy Watchdog, it was observed that the FSA is only for demonstrating the raw material's readiness and is not determinative of the terms and conditions of the contract. 48. Shri. C. Aryama Sundaram argued that the FSA related approximately 61 per cent of the fuel requirement. Thus, the change in law claim may be confined to 35 to 40 per cent. The argument cannot be accepted as bidding was not based on dual fuel, but was evaluated on domestic coal. There was no such stipulation that evaluation of bidding was done on domestic basis; the tariff was to be worked out in the aforesaid ratio of 60:40 per cent of imported coal and domestic coal respectively. Apart from that, we find from the order of the APTEL, that change in law provision would be limited to a shortfall in the supply of domestic linkage coal. The finding recorded by the APT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f under the change in law provision to the extent of shortage in supply in domestic linkage coal. Thus, we find no merit in the submission raised. We find the findings of the APTEL to be reasonable, proper, and unexceptional. 50. Our attention was also invited to para 3.2 of the Statutory Guidelines of 2005. It provided with respect to fuel arrangements. The same provided that in case of domestic coal, the bidder shall have made firm arrangements for fuel tie-up either by way of coal block allocation or fuel linkage. There is no doubt about it that the Government of Rajasthan entered into an MoU with APRL in 2008 to ensure supply of domestic coal and it had undertaken to facilitate the implementation of the Kawai Project for getting the coal block from the Central Government or coal from any other source for the project. Once the Government of Rajasthan entered into MoU dated 20.3.2008, containing Article 2.2 quoted above, it was incumbent upon the State of Rajasthan to provide coal from any other source for the project, in case the Central Government could not allot coal linkage/coal block. The Central Government had even written to the Government of Rajasthan to provide coal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt pending due to a shortage of coal supplies and was ultimately processed under the SHAKTI Policy, and linkage for 100 percent was given from January 2018. Thus, earlier as the quantity of coal was not available, sufficient supply could not be made. It is not a case where APRL was adjudged ineligible, but prior commitments and the non-availability of coal came in the way of failure to obtain domestic coal linkage under the NCDP of 2007, which itself was changed with effect from 26.7.2013. In Re. Change in Law 52. APRL's claim is based on the date of change of law in 2013. Admittedly, earlier NCDP of 2007 prevailed on the appointed date, i.e., 7 days before submission of the bid. In Energy Watchdog also, similar was the position. Though the application was submitted, coal linkage was not provided, and then there was a change in law in terms of the NCDP of 2013. This Court held that the benefit of change in law w.e.f. 2013 was available. The PPA was based upon the domestic coal, and its availability was based upon NCDP of 2007. The application was filed before submitting the bid. The application for linkage was filed in terms of the agreement when the bid was premised and acce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been raised. In Energy Watchdog, it was laid down that change in law is applicable to change in domestic law, not change in foreign law. It is not applicable to imported coal/change in foreign law. It was urged that application for grant of coal linkage was submitted to the Ministry of Coal for the supply of coal in the light of assurance given under the NCDP of 2007 in both the cases and those assurances, which were given in the Policy, were diluted or taken away by the subsequent scheme of the Government instrumentality. Consequently, no coal linkage or LoA or FSA was available in the hands of the Generator in Energy Watchdog. The cut-off date for applicability of law was 7 days prior to the bid deadline and change in law provision of Article 10 of the PPA in question is similar to Article 13 of the PPA in Energy Watchdog. Article 10 is extracted hereunder: ARTICLE 10: CHANGE IN LAW 10.1 Definitions In this Article 10, the following terms shall have the following meanings: 10.1.1 "Change in Law" means the occurrence of any of the following events after the date, which is seven (7) days prior to the Bid Deadline resulting into any additional recurring/non-recurring expendi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpensation shall be payable to either Party, only with effect from the date on which the total increase/decrease exceeds amount of Rupees Sixteen crore Fifty Lakh (Rs. 16.50 crore). 10.3.2 During Operating Period The compensation for any decrease in revenue or increase in expenses to the Seller shall be payable only if the decrease in revenue or increase in expenses of the Seller is in excess of an amount equivalent to 1 % of the value of the Letter of Credit in aggregate for the relevant Contract Year. 10.3.3 For any claims made Under Articles 10.3.1 and 10.3.2 above, the Seller shall provide to the Procurers and the Appropriate Commission documentary proof of such increase/decrease in cost of the Power Station or revenue/expense for establishing the impact of such Change in Law. 10.3.4 The decision of the Appropriate Commission, with regards to the determination of the compensation mentioned above in Articles 10.3.1 and 10.3.2, and the date from which such compensation shall become effective, shall be final and binding on both the Parties subject to right of appeal provided under applicable Law. 10.4 Notification of Change in Law 10.4.1 If the Seller is affected by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COMS have not denied the factual position/comparison of the PPAs. That being the case, there is no merit in the argument of Rajasthan DISCOMS that Energy Watchdog case is not applicable to the present case. We note that as on cut-off date the law prevailing is NCDP 2007 in both the cases. The supply assurance contained in NCDP 2007 was changed or altered for the Kawai Project by the decision of SLC(LT) on 31.05.2013. The main thrust of Adani Rajasthan's arguments is that even before the amendment of 2013 in NCDP 2007, the decision taken by SLC(LT) in May 2013 amounts to a Change in Law event under the PPA. The 2013 amendment to NCDP 2007 may be seen as a continuum of the SLC(LT)'s decision in May 2013 since it was Coal India's inability to meet the committed/assured coal supply that prompted the Ministry of Coal to issue the amendment to NCDP in July 2013, based on the CCEA decision in June 2013. The CCEA decision of June 2013 directed as follows: The Cabinet Committee on Economic Affairs (CCEA) today approved the following mechanism for supply of coal to power producers: (i) Coal India Ltd. (CIL) to sign Fuel Supply Agreements (FSA) for a total capacity of 78000 MW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concurrent finding on facts. We find no ground to interfere. No substantial question of law is involved. It was held in Energy Watchdog, that change in law was brought about in the NCDP of 2007 by the decision of 26.7.2013. It is provided in Article 10.2.1 how the change in law is to be applied to compensate for the impact. 58. The purpose of change in law is to restore through monthly tariff payment to the extent contemplated that the affected party is placed in the same economic position as if such a change in law has not occurred. As monthly tariff was worked out on domestic law, the requirement is to compensate on that basis due to change in law. The same is based on the principle of restitution. In Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL), it was laid down by this Court thus: 10. Article 13.2 is an in-built restitutionary principle which compensates the party affected by such change in law and which must restore, through monthly tariff payments, the affected party to the same economic position as if such change in law has not occurred. This would mean that by this Clause a fiction is created, and the party has to be put in the same economic position as if such cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as earlier allowable. This being the case, on 31-7-2013, the following letter, which is set out in extenso states as follows: FU-12/2011-IPC (Vol-III) Government of India Ministry of Power Shram Shakti Bhawan, New Delhi Dated: 31-7-2013 To, The Secretary, Central Electricity Regulatory Commission, Chanderlok Building, Janpath, New Delhi Subject: Impact on tariff in the concluded PPAs due to shortage in domestic coal availability and consequent changes in NCDP. Ref. CERC's D.O. No. 10/5/2013-Statutory Advice/CERC dated 20-5-2013. Sir, In view of the demand for coal of power plants that were provided coal linkage by Govt. of India and CIL not signing any fuel supply agreement (FSA) after March 2009, several meetings at different levels in the Government were held to review the situation. In February 2012, it was decided that FSAs will be signed for full quantity of coal mentioned in the letter of assurance (LoAs) for a period of 20 years with a trigger level of 80% for levy of disincentive and 90% for levy of incentive. Subsequently, MoC indicated that CIL will not be able to supply domestic coal at 80% level of ACQ and coal will have to be imported by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment hereby notifies the revised Tariff Policy to be effective from the date of publication of the resolution in the Gazette of India. Notwithstanding anything done or any action taken or purported to have been done or taken under the provisions of the Tariff Policy notified on 6-1-2006 and amendments made thereunder, shall, insofar as it is not inconsistent with this Policy, be deemed to have been done or taken under provisions of this revised policy. Clause 6.1 states: 6.1. Procurement of power As stipulated in Para 5.1, power procurement for future requirements should be through a transparent competitive bidding mechanism using the guidelines issued by the Central Government from time to time. These guidelines provide for procurement of electricity separately for base load requirements and for peak load requirements. This would facilitate setting up of generation capacities specifically for meeting such requirements. However, some of the competitively bid projects as per the guidelines dated 19-1-2005 have experienced difficulties in getting the required quantity of coal from Coal India Limited (CIL). In case of reduced quantity of domestic coal supplied by CIL, vis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall stand superseded and abrogated. 63. Article 10 of the PPA is clearly attracted that the change in law was in contemplation. Article 10 cannot be made redundant; the agreement is binding and must prevail. 64. The argument raised by Shri. C. Aryama Sundaram that carrying cost is a penal provision, cannot be accepted in view of the decision of this Court in Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL), in which with respect to carrying cost, it was held that carrying cost was payable in terms of restitution principle. The carrying cost is to be paid on the same basis as provided for other dues in the PPA. 65. It was argued that the RERC and the APTEL had not determined the amount. It is apparent that the principle has been worked out by the RERC as well as the APTEL. The quantification directions have been issued to Rajasthan DISCOMS to verify the documents submitted by APRL and make payment in terms of the judgment and order. Nothing further was required to be done by the RERC as well as the APTEL. 66. Considering the facts of this case and keeping in view that the RERC and APTEL have given concurrent findings in favour of the Respondent with regard to change in law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and compounded with monthly rest) for each day of the delay. Therefore, there shall be huge liability of payment of Late Payment Surcharge upon the Appellants-Rajasthan DISCOMS. 67. With regard to the question of interest/late payment surcharge, we notice that the plea of change in law was initially raised by APRL in the year 2013. A case was also filed by APRL in the year 2013 itself raising its claim on such basis. However, the Appellants-Rajasthan DISCOMS did not allow the claim regarding change in law, because of which APRL was deprived of raising the bills with effect from the date of change in law in the year 2013. We are, thus, of the opinion that considering the totality of the facts of this case and in order to do complete justice and to reduce the liability of the Appellants-Rajasthan DISCOMS, payment of 2 per cent in excess of the applicable SBAR per annum with monthly rest would be on higher side. In our opinion, it would be appropriate to direct the Appellants-Rajasthan DISCOMS to pay interest/late payment surcharge as per applicable SBAR for the relevant years, which should not exceed 9 per cent per annum. It is also provided that instead of monthly rest, the interes ..... X X X X Extracts X X X X X X X X Extracts X X X X
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