APTEL Relief For Avaada From Transmission Charges Till Final decision From CERC

In an interesting order, the Appellate Tribunal For Electricity (APTEL) has chosen to provide Avaada Energy relief from charges being claimed from transmission utilities for a project where it has been using Medium Term Open Access, instead of Long Term Open Access as mandated.

The Issue

Avaada had made both CERC (Central Electricity Regulatory Commission) and the Central transmission Utility of India (CTUIL) respondents to its appeal at APTEL. The issue was that during the hearing of the case before CERC on 05.05.2022, Avaada had pressed for an interim order in the nature of the restraint against the second respondent i.e. (CTUIL). Objections to the maintainability of the main petition presented by Avaada were taken before CERC by CTUIL. The CERC. after hearing both sides of the arguments, reserved its order by proceedings recorded on 05.05.2022. However, it was silent on the issue of interim relief from charges as claimed by CTUIL, which is what led Avaada to the APTEL’s doors.

The source of the issue is of course a project delay, as is the case for most disputes involving developers. It was submitted that COD (commercial operations date) was duly achieved on 11.05.2022 for the delayed project. During this period, Avaada has been availing of Medium Term Open Access (MTOA) for the reason that CTUIL had allegedly caused some delay in grant of Long Term Open Access (LTOA). Avaada had therefore  sought extension of MTOA to coincide with the extended SCOD/COD. The liability to pay transmission charges to the CTU for the period is dependent on the grant of MTOA/LTOA. The matter as to whether the MTOA was to be so extended as requested by the appellant is still pending a final decision at  the Central Electricity Regulatory Commission (CERC) after it reserved its judgment on the petition .

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APTEL Order

Aptel’s logic is quite simple. While the CERC had the right to take its time over the order, it should not have ignored the issue of charges being levied on the developer in the meantime. Accordingly, APTEL chose to grant an interim stay on those charges, even as the final CERC order comes in.