In a recent development, the Central Electricity Regulatory Commission (CERC) has rejected a review petition filed by M/s Adani Solar Energy Jodhpur Five Pvt Ltd. The petition sought to challenge the CERC’s order dated August 23, 2022, citing an alleged error in the decision.
The review petition primarily focused on the petitioner’s claim for carrying costs related to a change in law event. It argued that the CERC’s initial order did not adequately address this significant matter. The petitioner contended that carrying costs should be granted at the rate of interest specified for late payment surcharge (LPS) under the Power Purchase Agreement (PPA). They asserted that both LPS and carrying costs are relevant to deferred payments and cited the time value of money to justify their claim, emphasizing that the delay was beyond their control.
Additionally, the review petition pointed to a recent decision by the Appellate Tribunal for Electricity (APTEL) on September 15, 2022, which allowed carrying costs in a similar change in law clause context. The petitioner argued that the CERC’s order should align with this new precedent.
In response to the review petition, the Solar Energy Corporation of India (SECI) contested the petitioner’s claims. SECI maintained that the CERC’s decision should not be revisited based on subsequent judgments, as explained in the Code of Civil Procedure Code (CPC). SECI also noted that they had challenged the APTEL judgment in the Supreme Court, and the enforcement of the CERC’s order had been suspended until the Supreme Court’s decision. They further contended that the Power Purchase Agreement (PPA) in question did not incorporate provisions for restoring the same economic position, making the carrying costs inapplicable.
The CERC, after thorough consideration of both sides’ arguments, reached its verdict. They noted that during a hearing, the petitioner had acknowledged that their Safeguard Duty claims had been reconciled, and payments to SECI had begun. This admission led the CERC to conclude that the petitioner could not subsequently claim that the CERC had neglected the issue of carrying costs.
Furthermore, the CERC found that the review petition failed to identify any clerical or arithmetical errors or omissions that could be corrected. As such, the CERC determined that there was no obvious error in their original decision that warranted a review.
Addressing the petitioner’s argument regarding a change in law compensation based on the APTEL judgment, the CERC emphasized their established regulatory procedures. They pointed out that the petitioner had relied on the CPC’s provisions to seek a review, which contradicted their argument that the CPC did not apply.
Ultimately, the CERC dismissed the review petition, asserting that the grounds for a review were not substantiated. They maintained that the APTEL decision did not apply to the case at hand, and therefore, the original order remained unchanged.
This decision underscores the importance of adhering to the specific regulations and legal procedures set by regulatory bodies in the energy sector. It also highlights the need for consistency in arguments presented during legal proceedings.
