)
The appellate body, while rejecting the company's application for condonation of delay in filing appeal against original order of April 2013, has severely criticised CGPL for being negligent in filing appeal after long period of time, 374 days. It also did not find company's explanation for delay in filing appeal valid in any manner.
Last year CGPL had petitioned CERC seeking relief on account of adverse impact of the unforeseen, uncontrollable and unprecedented escalation in the imported coal price. CERC on April 15, 2013 had allowed the CGPL to raise power tariffs from its 4,000-MW Mundra ultra mega power project in Gujarat, to compensate for an unexpected increase in coal cost. However, the central regulator had rejected CGPL's argument that the situation it was facing was due to the 'Change in Law' by the Government of Indonesia and 'Force Majeure'.
Aggrieved by the CERC order rendering certain negative findings with regard to the issues raised by the company, CGPL filed an appeal before Aptel in June this year. Along with the appeal the company had filed application to condone delay of 374 days in filing appeal against the original order.
"We are of the view that the Applicant (CGPL) was negligent throughout by their inaction and the lack of diligence and decided not to file the Appeal at the appropriate state. But, after a long time, now the Applicant (CGPL) decided to file the present Appeal along with the Application to condone the delay of 374 days without any valid explanation," the Aptel bench of Justice M Karpaga Vinayagam and Rakesh Nath stated in their order.
"We hold that the explanation offered by the Applicant (CGPL) for the inordinate delay not only suffers from lack of bona fide but also suffers from the lack of diligence," the bench added, dismissing the application to condone the delay and consequently rejecting the appeal against the April 2013 order of CERC.
The Aptel observed that though CGPL was aggrieved over the portion of the CERC order of April 2013 it did not exercise its right to file the appeal at that stage itself like other power procurers who exercised their rights by filing the appeal. "This clearly proves that the Appellant (CGPL) duly accepted the impugned order (of CERC) and proceeded with its implementation without taking any step to challenge the said order at the relevant time," the order stated.
An emailed query to Tata Power did not elicit any reply.
Last year CERC. while allowing compensatory tariff to CGPL and Adani Power, had asked the power procuring states to form a panel and decide on the quantum of compensation. CGPL had actively participated in the implementation of the order by appearing before the said Committee. The panel, which was headed by HDFC Bank Chairman Deepak Parekh, in its report, said the company should be allowed an increase of 45-55 paise tariff in its Mundra plant.
Base on the panel's report CERC had in February 2014 ruled power-generation companies be allowed to adjust the compensation arising out of the increasing cost of domestic fuel and rising dependence on costly imported fuel. Following this Aptel had on July 21 this year passed interim order allowing Tata Power and Adani Power to recover power dues from March 2013 on account of rise in imported fuel cost. However, the Tribunal said the companies will not recover any pre-March 2013 arrears.
The power distribution utilities of various states challenge Aptel's interim order in the Supreme Court in August. The Apex Court stayed the interim order on compensatory tariff, and asked the tribunal to finalise the matter expeditiously.
