TaxTMI 
TaxTMI 
2018 (3) TMI 1935
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....n of India (hereafter referred to as "UOI"). 3. In C.M. No.7039/2018, the relief sought is to vacate the interim order dated 31.01.2018. In R.A. No.102/2018, more or less, the same relief is sought, though, worded differently. The UOI seeks review/ recall of order dated 31.01.2018. 4. Therefore, it would be necessary to briefly recapitulate the direction that was issued by me, on 31.01.2018. After hearing the counsels for contesting parties, I had directed CIL to supply coal to the writ petitioner of the requisite grade as referred to in prayer clause (b) of C.M. No.46291/2017 via its subsidiary Southern Eastern Coalfields Limited (hereafter referred to as "SECL"). Attendant observations were also made, which form part of order dated 31.01.2018. 4.1 Since, in essence, the arguments advanced, albeit, at some length by the counsels for the parties are primarily rooted in the order dated 31.01.2018 (as corrected for typographical errors via dated 21.2.2018), the relevant part of the said order is set forth hereafter: - "...3) The immediate grievance of the petitioner is that even though it has been issued a Letter of Assurance (LOA) as far back 24/25.6.2008 and its p....
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....ed either an FSA with the petitioner or in the very least allowed the petitioner to participate in auctions envisaged under clause B(ii) of the very same policy. 7) Having heard learned counsel for the parties, it would be relevant for the purpose of dealing with the interlocutory application to extract the clauses of the SHAKTI Policy on which reliance has been placed by the petitioner: (A) Under the old regime of LoA-FSA: i. FSA may be signed with the pending LoA holders after ensuring that the plants are commissioned, respective milestones met, all specified conditions of the LoA fulfilled within specified timeframe and where nothing adverse is detected against the LoA holders. The outer time limit within which the power plant of LoA holders must be commissioned for consideration of FSA shall be 31.03.2022, failing which LoA would stand cancelled. Coal supply to these capacities may be at 75% of ACQ. The coal supply to these capacities may be increased in future based on coal availability. ii. The 583 pending applications for LoA need not be considered and may be closed. (B) The following shall be considered under a New More Tran....
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.... Jain was unable to demonstrate that any such communication was sent to the petitioner. 12) In these circumstances, according to me, prima facie, the petitioner appears to fulfil the pre-requisites of clause A (i) of the SHAKTI Policy. 13) Besides this, I had also asked Mr. Jain whether the petitioner could be given coal in pursuance of provisions of clause B(ii). 13.1) Mr. Jain, on instructions, informs me that the auction envisaged under clause B(ii) was a onetime auction and, therefore, the petitioner cannot get coal at the "notified price" via auction route postulated under clause B(ii) of the SHAKTI Policy. 14) Given these circumstances, the petitioner is placed in a rather peculiar position. While its power plant (Unit-I) is up and about it is I am told hurtling towards a shut down, if not already shut down, because of lack of assured fuel supply. 15) Before I conclude, I may also advert to another submission made by Mr. Jain, which is that the petitioner has been presently running Unit-I by buying coal in spot auctions. Mr. Jain's submission in effect is that the petitioner could continue to obtain coal from such spot auction....
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....2018, the competent authority has approved the decision taken qua the petitioner, by SLC (LT), at its meeting held on 19.1.2018. 6. Thus, in effect, the interlocutory application and the review application have been filed, in substance, to recall the order dated 31.01.2018 on the ground that the competent authority has accepted the recommendation of SLC (LT), which is, that the LOA issued to the petitioner as GCPP cannot be transferred only by reason of the fact that it stands converted to an IPP. In other words, what is sought to be emphasized is that since there is no LOA in existence, based on which supplies could be sought by the petitioner vis-a-vis Unit-I, the order dated 31.01.2018 as a logical sequitur needed to be recalled. 7. As a matter of fact, both Ms. Maninder Acharya, learned ASG and Mr. Jagdeep Dhankar, Senior Advocate who appeared for CIL, in sum, made a somewhat identical submission, though paraphrased differently, which was that with the issuance of order dated 15.2.2018 by the competent authority, the circumstances which obtained on 31.01.2018 had undergone a significant change. As a matter of fact, it was contended both on behalf of UOI as well as CI....
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....AMNEPL, PPA was to be based on tariff-based bidding where the rates are marketdiscovered. e. In the cases of conversion of category after the case of PP, the entities have been denied transfer of linkage upon change in the category from PP to CPP or vice-versa. In view of the above facts, this Committee recommends that LoA issued to PP as GCPP cannot be transferred upon its conversion to IPP. However, in the backdrop of adequate coal availability scenario and to further the objective of SHAKTI Scheme, MoC may explore the feasibility so that the PP may obtain coal linkage as an IPP under provisions of the SHAKTI Scheme. 11. In the context of the aforesaid, Mr. Sibal, in my view, has correctly brought to my notice the following documents which would show that the LOA issued to the petitioner continued to hold good even after it was categorised as an IPP. The documents, which were referred in this behalf are as follows: - (i) Letter dated 1.4.2014, issued by Western Coalfields Limited (WCL) to the petitioner; (ii) Letter dated 11.11.2014 issued by WCL to SECL. (ii)(a) In this letter, it is clearly indicated that the petitioner, that is, the LOA h....
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.... the Truing up for FY 2014-15 cannot be justified." 14. Pertinently for the sake of completion of narration, it may be relevant to note that an appeal was preferred against the aforementioned order of MERC to the Appellate Tribunal, which was disposed of via order dated 3.11.2016. By this order, the order dated 20.6.2016, passed by the MERC was partially modified, albeit, to the extent indicated therein. 15. It is in the background of these circumstances that the petitioner had approached this Court with a grievance that even though it fulfilled every criteria stipulated under the SHAKTI Policy for execution of a Fuel Supply Agreement (FSA), the respondents had not moved forward and, thus, deprived it of the opportunity of accessing fuel at the notified price. 16. The respondents, do not, as indicated above, dispute that the petitioner has commissioned Unit-I and, as adverted to above, according to WCL and/ or SECL met all milestones and conditions specified in the LOA. The objection taken by UOI and CIL that the LOA issued to the petitioner as GCPP would not enable it to gain access to fuel in its new avatar as an IPP, cannot be sustained as the documents placed on record....
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....ed 12.12.2013 has further conveyed that CEA has clarified that as per PPA signed on 14.08.2013 with Reliance Infrastructure Ltd. the benefit of lower cost fuel will be pass through to the consumers....." (emphasis is mine) 18. I may also indicate that it has been contended by Ms. Acharya that an FSA cannot be executed vis-à-vis LOA holders qua whom adverse aspects are noted. Pertinently, this argument is made in the context of clause A(a)(i) of the SHAKTI Policy. To buttress this submission, learned ASG also relied on paragraph 17 of the order dated 15.2.2018, issued by the competent authority. 19. A careful perusal of paragraph 17 of the said order would show that the Ministry of Coal had informed the competent authority that a complaint had been received against the petitioner via letter dated 3.2.2014 which, apparently, was also addressed to CBI and CVC. 19.1 This complaint raised the very same issue which has been dealt with above, that is, the petitioner had bypassed the queue of IPPs by having its category changed from GCPP to IPP. Therefore, clearly, the complaint received by the aforementioned three authorities made a grievance qua the petitioner only in ....