West Bengal Elect.Regulatory Commn vs Hindalco Industries Ltd.& Ors

4. We may notice here the skeletal facts which are necessary for the purpose of disposal of these two appeals. HINDALCO Industries Limited, formerly known as Indian Aluminum Company Limited (hereinafter referred to as respondent No.1) has an aluminum and copper products factory at Belurmath in West Bengal within the distribution licence area of CESC. It had an existing Contract Demand Agreement for 8.5 MW with CESC drawing power at the voltage of 33 KV through dedicated lines from the Belurmath receiving Sub-Station of CESC. For this purpose, respondent No.1 has installed a 33 KV Sub-Station at its premises. It has a captive power plant at Hirakud, Orissa. On 31.10.2003 respondents filed an application under Section 9 and 42 of the Electricity Act, 2003 before 2 the Commission seeking permission for open access to wheel surplus captive power of an approximately 9 MW from its power plant to its Belur factory. The distance between the captive power plant at Hirakud, Orissa and Belurmath plant in West Bengal is about 555 kilometers, out of which 550 kilometers falls within the jurisdiction of West Bengal State Electricity Board (for short WBSEB), OPTCL and Eastern Region. We may also notice here that out of these five kilometers, respondent No.1 had at its own cost put up 2 kilometers long dedicated transmission line, thus using only 3 kilometers of the CESC network. Respondent No.1 paid wheeling charges for transmission of power at the rate of 9.57 paise per unit for 550 kilometers. However, in respect of remaining five kilometers, which also fall within the State of West Bengal, respondent No.1 has to pay wheeling charges at the rate of 83.54 paise/kWh as fixed by the Appellate Commission by its order dated 21.11.2005. In its order dated 21.11.2005 the Commission had observed as follows:

5. Aggrieved by the aforesaid order, respondent No.1 challenged the same before the Tribunal by way of an appeal being Appeal No.1/2006. The aforesaid appeal was allowed by the Tribunal by its order dated 11.7.2006. The impugned order of the Commission was quashed and set aside. The matter was remanded back to the Commission for a fresh determination of wheeling charges with the following observations:

6. Upon remand, the matter was again heard, and decided by the Commission vide order dated 16.11.2006. By this order the Commission sought to demonstrate and detail the methodology for determining the wheeling charges payable by respondent No.1. The wheeling charges were re-determined by the Commission at 83.54 paisa per KWH. Again being aggrieved by the aforesaid order, respondent No.1 impugned the same before the Tribunal by way of Appeal No.3/2007.

7. We may notice here that in both the matters before the Tribunal, respondent No.1 had challenged the determination of wheeling charges for the year 2005-06. Initially, respondent No.1 had challenged the order passed by the Commission on 21.11.2005 in Appeal No.1/2006. By order dated 11.7.2006 Appeal No.1/2006 was allowed and the matter was remanded back to the Commission for fresh determination of wheeling charges. It was observed that there was no detailed discussion in the order which would throw light upon the manner and methodology behind determination of wheeling charges. The grievance made by respondent No.1 which was noticed by the Tribunal was that "no particular wheel disclosed is the main 5 grievance and regulation governing wheeling charges have not been applied correctly."

10. At this stage we need not decide any of the issues raised by the appellants as, in our opinion, the appeals have to be allowed on the short ground that the Tribunal has failed to consider the objection raised by the appellants with regard to the maintainability of the appeal filed by respondent No.1, before the Tribunal.

12. The specific submission made by the appellant with regard to the maintainability of the appeal was an important issue which needed consideration by the Tribunal. Numerous issues, which have been raised in these appeals on merits, were also raised before the Tribunal which seem to have escaped the notice of the Tribunal rendering its decision vulnerable. In our opinion, it would be in the interest of justice to remand the matter back to the Tribunal for fresh consideration of all the issues after taking into consideration the factual and legal submissions made by the appellant. In view of the 8 above both the appeals succeed and are allowed. The order passed by the Tribunal is set aside. The appeals are remanded back to the Tribunal to be decided afresh on merits, in accordance with law preferably within a period of three months of the receipt of a certified copy of this order.

13. Appeals are allowed as indicated above with no order as to costs.