CERC Grants Exemption To ACME Solar From Filing Affidavit Until Courts Resume

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The Central Electricity Regulatory Commission (CERC) issued an order regarding approval of Annuity model in terms of Central Electricity Regulatory Commission (Terms and Conditions for Tariff Determination from Renewable Energy Sources) Regulations, 2017 for recovering Safeguard Duty Claim on account of Change in Law from M.P. Power Management Company Limited and Delhi Metro Rail Corporation.

The Petitioner,ACME Jaipur Solar Power Private Limited  has made the following prayers : a. Approve and instruct the MPPMCL and DMRC to make the due payments to Petitioner as per the payment methodology as submitted by the Petitioner in the present Petition; b. Approve and direct MPPMCL and DMRC to make upfront payment to the Petitioner on a lump-sum basis for the period being from COD to the date of first Monthly Annuity Payment along with Late Payment Surcharge; c. Approve and direct MPPMCL and DMRC to pay Safeguard duty amounts towards Bonds on lumpsum basis along with interest as levied by the concerned customs authority; d. Allow legal and administrative costs incurred by the Petitioner in pursuing the instant petition; e. Grant exemption from filing duly affirmed affidavit in view of the extension of the countrywide lockdown due to the outbreak of COVID-19 with an undertaking that the duly affirmed affidavit will be submitted once the regular functioning of the Courts resume; f.Pass such other/further Order(s)/directions(s) as the Commission may deem fit in the facts and circumstances in the present case. 

From previous orders the Commission observes that: a. The Petitioner was to make available to the Respondents all relevant documents exhibiting clear and one to one correlation between the projects and the supply of imported goods till the commissioning certificate is issued in accordance with the provisions of the PPA, duly supported by relevant invoices and Auditor’s Certificate. b. The claim was to be paid by the Respondents in lump sum within sixty days of the date of Order or from the date of submission of claims by the Petitioners whichever is later. c. Alternatively, the Petitioners and the Respondents were to mutually agree to a mechanism for the payment of such compensation on annuity basis spread over the period not exceeding the duration of the PPAs as a percentage of the tariff agreed in the PPAs.

The Commission observes that the Petitioner has submitted that out of the supplementary invoices of Rs. 88,79,38,552/- (Rs. 19,41,31,052/- related to DMRC and Rs. 69,38,07,500/- related to MPPMCL) raised by the Petitioner on 14.11.2019, the amounts of Rs. 47,10,35,111/- (Rs. 36,80,52,150 to be payable by MPPMCL and Rs. 10,29,82,961 to be payable by DMRC) stand reconciled. The only submission of the Petitioner is that lis pendens Petition 373/MP/2020, the Respondents may be directed to start paying the reconciled amount of Rs. 47,10,35,111/- as per “interim payment methodology” decided among the contracting parties on 20.03.2020. 

Also during the hearing held on 08.05.2020, the learned counsel for the Petitioner submitted that the Respondents may be directed to start paying the reconciled amount of Rs. 47,10,35,111/- (as admitted by the Respondents), as per the deferred annuity payment based on interest rate of 6 months average SBI MCLR (1 year tenure) plus 250 basis points (floating). MPPMCL has proposed that considering the circumstances due to COVID-19, they will start the payment only from the month of July, 2020 or whenever the prevailing situation normalizes.

Learned Counsel for DMRC has submitted that subject to the outcome of the main Petition, it has already started paying the compensation to the Petitioner. Learned counsel for MPPMCL has submitted that MPPMCL in its letter dated 07.04.2020 has already informed that it is ready to pay the compensation for the admitted amount at 250 basis points above average SBI MCLR (one-year tenure). Since the contracting parties have mutually agreed for paying the reconciled amount of Rs. 47,10,35,111/- as per deferred annuity payment based on interest rate of 6 months average SBI MCLR (one-year tenure) plus 250 basis points (floating) as an ‘interim measure’ subject to final outcome of the Petition 373/MP/2020 on merits of the case, the Commission directs that the payment be made by the respondents on these terms as an ‘interim measure’, subject to the final decision.

Commission states that “we are not agreeable to the contention of the Respondents that they may be allowed to make payment from July 2020 or when the lockdown is lifted. They are directed to release payments to the Petitioner immediately.”

The Commission notes that the Petitioner has prayed to “restrain MPPMCL and DMRC from initiating any coercive action against the Petitioner owing to the pendency of the accompanied Petition;” Now, since the Respondents have agreed to pay as per the interim measure , this prayer becomes redundant.

The Petitioner has also requested to be granted exemption from filing duly affirmed affidavit in view of the extension of the countrywide lockdown due to the outbreak of COVID-19 and has undertaken to submit the duly affirmed affidavit once regular functioning of the Courts resume. The Commission states that this is in accordance with our Notice dated 03.04.2020 and hence the prayer qua filing of duly affirmed affidavit once the regular functioning of the Courts resume, is allowed. 

The Commission concluded by ordering that “The parties are directed to complete the pleadings which shall be listed for hearing in due course of time for which separate notice will be issued”.

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