M/S.Creamline Dairy Products v. Tamil Nadu Generation And
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.03.2023 CORAM :
THE HONOURABLE MR. JUSTICE M. DHANDAPANI and W.M.P.Nos.3308 & 3309 of 2018 M/s.Creamline Dairy Products Ltd., HTSC No.1697, Plant as S.No.9/1, Orakkadu Village, Sholavaram, Ponneri Taluk, Thiruvallur District, Chennai - 600 067, Rep by its Company Secretary ... Petitioner Vs.
1.Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 10th Floor, 144, Anna Salai, Chennai - 600 002.
2.The Superintending Engineer, Chennai West Electricity Distribution Circle, Chennai.
3.The Deputy Financial Controller, Chennai West Electricity Distribution Circle, Chennai.
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4.The Superintending Engineer, Tirunelveli Electricity Distribution Circle, Tirunelveli.
5.Tamil Nadu Electricity Regulatory Commission (TNERC), 19-4, Rukumini Lakshmipathy Salai, Egmore, Chennai - 600 008.
Respondents Prayer: Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records of the 3rd respondent relating to the demand of Rs.54,36,343/- under the heading "Adjustment Charge" raised by the 3rd respondent in the Bill dated 02.01.2018 for the month of January 2018 in respect of the petitioner's HTSC No.
1697 and quash the same as illegal and direct the respondents to strictly comply with the statutory previsions of Electricity Act 2003, Electricity Rules, 2005 and the binding judgments of the Hon'ble APTEL in the matter of determination and verification of status of the Captive Generating Plants by approaching the Tamil Nadu Electricity Regulatory Commission for directions and determination of the status of the Captive Generating Plants as stipulated under the provisions of Electricity Rules, 2005 and confirmed by the binding judgements of the Hon'ble APTEL. For Petitioner : Mr.Krishna Srinivasan for M/s.S.Ramasubramaniam & Associates For Respondents : Mr.L.
ORDER
Instant Writ Petition has been filed challenging the impugned demand raised by the third respondent/The Deputy Financial Controller, TANGEDCO.
2. The case of the petitioner is that it is a Company inter-alia engaged in the manufacture of dairy products, for which, the petitioner requires uninterrupted electricity supply, which apart from being sourced from TANGEDCO is also being provided from the petitioner's own windmills. Accordingly, they entered into agreements with TANGEDCO for captive consumption from the CGPs by way of Energy Wheeling Agreements (EWA) signed between the captive consumers and the TANGEDCO. As per the agreements with the TANGEDCO, 5% wheeling loss shall be deducted from the total electricity from the said windmills and the balance shall be available for captive consumption.
2.1. Further case of the petitioner is that, by Audit Slip No.73, it was informed that the petitioner had failed to pay the 51% captive consumption requirement for the period 04/2012 to 03/2013 and TANGEDCO had 3/8
directed the petitioner to remit a sum of Rs.54,47,918/- for failing to pay the 51% captive consumption requirement, thereby losing the captive status. The petitioner sent proper replies on 25.01.2016, 21.12.2017 and 17.01.2018. However, the Superintending Engineer, Tirunelveli Electricity Distribution Circle sent a letter to the Superintending Engineer, Chennai West Electricity Distribution circle, wherein, it has been stated that the demand of Rs.54,36,343/- may be included in the Electricity Consumption Bill for January 2018 for the petitioner's HTSC No.1697 supplying electricity at its Plant at Chennai. Pursuant to which, the third respondent has raised the impugned demand/bill dated 02.01.2018 for the month of January 2018 in respect of the petitioner's company stating that a sum of Rs.54,36,343/- has been included under the heading "Adjustment Charge". Challenging the same, the petitioner filed the above writ petition before this Court for appropriate directions.
3. The learned counsel for the petitioner would submit that, during the pendency of this writ petition, the respondents 1 to 4 have filed their affidavit, in which, it is has been stated that, in view of the subsequent development, the demand made by the respondent TANGEDCO against the 4/8
petitioner towards payments of 75% unutilized banked wind units for the year 2012-13 of Rs.54,36,343/- has become infructuous. Hence, he prays that, in view of the affidavit filed by the respondents, this Court may set aside the demand and pass appropriate orders.
4. Heard the learned counsel for the petitioner as well as the learned Standing Counsel appearing for the respondents 1 to 4 and perused the materials available on record.
5. The relevant portion of the affidavit filed by the respondents 1 to 4 is extracted hereunder :
''6) I respectfully submit that, said instruction issued by the respondent TANGEDCO vide letter dated 11.07.2014 was superseded by subsequent instruction issued vide Memo.No.CFC/REV/FC/REV/ DFC/AAO/HT/D.324/18, dt.16.05.2018 and the relevant contents is reproduced below for ease reference:- "3.7 While fact being so, it is stated that instructions had been issued that 3rd party wind power does not have banking facility vide Technical Branch Proceeding CMD No.71 dated.28.12.2010. In this connection, it is most relevant to mention that in accordance with the Energy Wheeling Agreements and also the wind energy tariff orders dated 15.05.2006, 20.03.2009, 31.07.2012 and 31.03.2016 the 5/8
Wind Energy Generator has provision that the unutized portion of the banked energy if any shall be purchased by the licensee at the rate of 75% of the normal purchase rate at end of the financial year and hence, the Wind Energy Generator is eligible for getting payment for unutilized portion of banked energy as mentioned above at the rate of 75% of the norma purchase. Further, it is most relevant to mention that there is no provision in the Energy Wheeling Agreement that if the Captive Wind Energy Generator has lost Captive status, the Banking Provision will be withdrawn and the wind energy generator is not eligible for the payment of unutilized banked units for the financial year. Therefore, the contention of the letter dated 11.07.2014 which is the consequential order of Technical Branch's Proceeding CMD No.71 dated. 28.12.2010 may not be sustainable one and also inconsistent with the Hon'ble Commission's Wind Energy Tariff order and other relevant orders.
3.8. In view of the above it is stated that the CSS can alone be collected for the adjusted energy from the captive users who fails to satisfy the captive norms. The payment for the surplus energy has to be admitted in accordance with the conditions of EWA executed by the generators. The Hon'ble High Court of Madras has passed an order dt. 25.04.2017 in WP.No.10497 of 2017 filed by M/s. TASMA and others batch challenging the circulars issued in the matter of verification of captive status that the captive norms verification can be carried out but the demand for CSS could not be raised.
7) I respectfully submit that, in view of the subsequent development as state supra, the demand made by the 6/8
respondent TANGEDCO against the petitioner towards payment of 75% unutilized banked wind units for the year 2012-13 of Rs.54,36,343/- has become infructuous.''
6. In view of the above submissions made in the affidavit filed by the respondents 1 to 4, the writ petition is closed. No costs. Consequently, the connected miscellaneous petitions are also closed. 23.03.2023 Index : Yes / No Speaking order / Non-speaking order sp To 1.The Tamil Nadu Generation and Distribution Corporation Limited (TANGEDCO), 10th Floor, 144, Anna Salai, Chennai - 600 002.
2.The Superintending Engineer, Chennai West Electricity Distribution Circle, Chennai.
3.The Deputy Financial Controller, Chennai West Electricity Distribution Circle, Chennai.
4.The Superintending Engineer, Tirunelveli Electricity Distribution Circle, 7/8
Tirunelveli.
M.DHANDAPANI, J.
sp 5.The Tamil Nadu Electricity Regulatory Commission (TNERC), 19-4, Rukumini Lakshmipathy Salai, Egmore, Chennai - 600 008.
and W.M.P.Nos.3308 & 3309 of 2018 23.03.2023 8/8