TaxTMI 
TaxTMI 
2023 (4) TMI 1318
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....y deciding the three common issues. However, insofar as the other appeals are concerned, it was submitted that, in addition to the three common issues, certain additional issues were also involved and it was agreed that after those two appeals are decided, the other appeals should be heard for considering these additional issues. 2. The said three common issues are thus: (i) Whether 'Change in Law' relief on account of New Coal Distribution Policy, 2013 ("NCDP 2013" for short) should be on 'actuals' viz. as against 100% of normative coal requirement assured in terms of New Coal Distribution Policy, 2007 ("NCDP 2007" for short) OR restricted to trigger levels in NCDP 2013 viz. 65%, 65%, 67% and 75% of ACQ? (ii) Whether for computing 'Change in Law' relief, the operating parameters should be considered on 'actuals' OR as per technical information submitted in bid? (iii) Whether 'Change in Law' relief compensation is to be granted from 1st April 2013 (start of Financial Year) or 31st July 2013 (date of NCDP 2013)? 3. After extensively hearing all the learned Counsel for the parties, vide the judgment and order dated 3rd March 2023 in the c....
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.... Purchase Agreements ("PPAs" for short) with DNH-DISCOM for supply of 200 MW power to Maharashtra State Electricity Distribution Company Limited ("MSEDCL" for short) on 17th March 2010 ["MSEDCL PPA") and for supply of 200 MW power on 21st March 2013 ("DNH PPA"), after it emerged as the successful bidder for supply of power to MSEDCL/DNH-DISCOM. The Scheduled delivery date under the MSEDCL PPA was 17th March 2014, whereas under the DNH PPA, it was 1st April 2013. GWEL is also supplying 150 MW power from its power plant to Tamil Nadu Generation and Distribution Corporation ("TANGEDCO" for short) by way of back-to-back arrangement with trading company GMR Energy Trading Limited, for which purpose, a PPA was signed on 27th November 2013 ("TANGEDCO PPA"). 12. In terms of the PPAs, the cut-off date, which is 7 days prior to the bid deadline, is to be considered for the purpose of claims under 'Change in Law'. Following are the cut-off dates under the said PPAs. DNH PPA MSEDCL PPA TANGEDCO PPA Cut-off date 1.6.2012 31.7.2009 27.2.2013 13. Certain 'Change in Law' events occurred with regard to MSEDCL PPA and DNH PPA after the cut-off date. The same were not....
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....earing on behalf of MSEDCL and Mr. M.G. Ramachandran, learned Senior Counsel appearing on behalf of the DNH-DISCOM. 22. Mr. Vishrov Mukherjee submits that the learned APTEL has erred in disallowing the claim on the following items: (i) Withdrawal of Deemed Export Benefit by way of Circular dated 28th December 2011 and Notification dated 28th December 2011 issued by the Directorate General of Foreign Trade ("DGFT") and amendment to the Foreign Trade Policy dated 21st March 2012; (ii) Imposition of Crushing/Sizing charges and Surface Transportation Charges by Notification dated 15th October 2009; (iii) Change in system of classification of coal by Coal India Limited ("CIL" for short) from Useful Heat Value ("UHV" for short) to Gross Calorific Value ("GCV" for short) system of pricing by way of Notification dated 30th December 2011; (iv) Increase in levy of Minimum Alternate Tax ("MAT" for short) pursuant to amendment of Section 115JB of the Income Tax Act, 2012; (v) Design changes in Coal Handling Plant in terms of letter issued by the Central Electricity Authority ("CEA" for short) dated 19th April 2011; (vi) Increase in working capital. 23. It is submitted that all th....
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....owed Levy of Central Excise Duty subject to directions in para 32 of the order Allowed Levy of Clean Energy Cess Allowed Levy of Customs Duty on energy removed from SEZ to DTA Allowed Increase in Busy Season Surcharge on transportation of coal Not Allowed Increase in Development Surcharge on transportation of coal Not Allowed Levy of Service Tax on transportation of coal Allowed Levy of Green Energy Cess in Gujarat Liberty granted to approach after Hon`ble Supreme Court's Decision Increase in Sizing Charges of coal Not Allowed Increase in Surface Transportation Not Allowed Change in pricing of coal from UHV to GCV basis Not Allowed Change in class from 140 to 150 for Railway freight for coal for trainload movement Not Allowed Levy of Minimum Alternate Tax on plants situated in SEZ Not Allowed Linking railway tariff revision with movement in cost of fuel Not Allowed Imposition of Swachh Bharat Cess Allowed Payment to National Mineral Exploration Trust Allowed Payment to District Mineral Foundation Allowed Instal....
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.... learned APTEL in Appeal No. 119 of 2016 & I.A. Nos. 668 and 674 of 2016 and in Appeal No. 277 of 2016 & I.A. No. 572 of 2016. 36. Appeal No. 119 of 2016 & I.A. Nos. 668 & 674 of 2016 were filed by M/s. Adani Power Rajasthan Ltd. ("APRL" for short), being aggrieved by the judgment and order dated 15th March 2016, passed by the Rajasthan Electricity Regulatory Commission (hereinafter referred to as "State Commission") thereby disallowing some of its claims on account of 'Change in Law', whereas Appeal No. 277 of 2016 and I.A. No. 572 of 2016 were filed by the Rajasthan DISCOMS, being aggrieved by the order of the State Commission of the same date vide which some of the 'Change in Law' claims were allowed by the CERC. 37. The 'Change in Law' claims which were allowed by the State Commission are as under: i. Change in Rate of Royalty Payable on Domestic Coal; ii. Levy of Service Tax on Transportation of Goods by Indian Railways (IR); and iii. Increase in Fee for 'Consent to Operate'. 38. The 'Change in Law' claims which were not allowed by the State Commission are thus: 1. Change in Pricing Mechanism of Coal from Useful Heat Value (UH....
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....ground of 'Change in Law' is thus: Sr. No. Change in Law's items Decision of the Commission A. Levies on Royalty * National Mineral Exploration Trust effective from 14.08.2015 * District Mineral Foundation effective from 12.01.2015 Allowed B. Levy of Swachh Bharat Cess (SBC) along with Service Tax for rail transportation effective from 15.11.2015 Allowed C. Levy of Swachh Bharat Cess @0.5% along with Service Tax Operation Period effective from 15.11.2015 Not Allowed D. Levy of Krishi Kalyan Cess (KKC) along with Service Tax and Swachh Bharat Cess for rail transportation from lst June 2016 Allowed E. Levy of Krishi Kalyan Cess @0.5% along with Service Tax and Swachh Bharat Cess - Operation Period from 1st June 2016. Not Allowed F. Amendment to Environmental (Protection) Rules 1986 Not Allowed G. Levy of Coal Terminal Surcharge (CTS) effective from 22.08.2016 Not Allowed H. Utilization of Fly Ash generated from coal and lignite based thermal power projects Not Allowed I. CG Paryavaran Upkar Not Allowed J. CG Vikas Upkar Not All....
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....EL granted claims on the ground of: (i) Change in NCDP (cancellation of Captive Block vis-à-vis tapering linkage), (ii) busy season surcharge and developmental surcharge, (iii) carrying cost; and (iv) add on premium price. 54. We have heard Mr. Vishrov Mukherjee, learned Counsel appearing on behalf of the GKEL/Generator and Ms. Anushree Bardhan, learned Counsel appearing on behalf of the Bihar DISCOMS. 55. Mr. Vishrov Mukherjee submits that the learned APTEL as well as the CERC have grossly erred in rejecting the claim for compensation on the ground of: (i) change in source of coal from Mahanadi Coalfields Ltd. ("MCL" for short) to Eastern Coalfields Ltd. ("ECL" for short) vide Notification dated 26th February 2014 issued by the CIL; (ii) change in mode of transportation from rail to road vide Notification dated 29th September 2014 issued by MCL; (iii) increase in levy of Minimum Alternate Tax ("MAT" for short); and (iv) interest on working capital. 56. Learned Counsel submitted that change in source of coal from MCL to ECL was on account of the notification issued by the CIL, which is an instrumentality of the State. Similarly, he submitted that the chang....
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....charge and service tax; (ii) VAT rate enhancement from 4% to 5% from 30.03.2012 onwards; (iii) Carrying cost/interest on compensation on the above items after ascertainment of the same by computation, which shall be assessed from the date of respective notification/circular/order from the concerned Ministry/Department/Governmental instrumentality till payment is made. 62. Appellant-GKEL, being unsatisfied with the same, has approached this Court praying for a direction that it is also entitled to compensation on various other components, viz., (i) Increase in Water Charges; (ii) Shift from UHV to GCV methodology of pricing of coal; (iii) Increase in rate of MAT; and (iv) Interest on working capital. 63. Arguments similar to the ones advanced in Civil Appeal No. 3123 of 2019 and Civil Appeal No. 5372 of 2019 were advanced by the learned Counsel for the parties. Civil Appeal Nos. 5583-5584 of 2021 64. These appeals, filed by Bihar DISCOMS, arise out of the judgment and order dated 6th August 2021, passed by the learned APTEL in Appeal No. 423 of 2019 and in Appeal No. 173 of 2021. 65. In the said case, the learned APTEL, vide order dated 21st December 2018, had allow....
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.... Power Rajasthan Limited and Anr. (hereinafter referred to as "Adani Rajasthan case") and MSEDCL v. APML and Ors. (supra). 73. He further submits that the delay in operationalization of the captive mines was not on account of any reason attributable to GKEL. He submits that, since the allotment of coal blocks was cancelled on account of the judgment of this Court in the case of Manohar Lal Sharma v. The Principal Secretary and Ors. (2014) 9 SCC 516 and 2014 (9) SCC 614, GKEL was also entitled for the benefit for the said period. 74. Insofar as Busy Season Surcharge is concerned, he submits that there is a concurrent finding of fact. He submits that, in any case, the said charges are issued by the Railway Board by issuing Notifications/Circulars. He submits that since the Railway is an instrumentality of the State, both the CERC and the learned APTEL have concurrently held that the Generator would be entitled to compensation on the ground of 'Change in Law'. Civil Appeal No. 39 of 2021 75. This appeal filed by the DNH-DISCOM arises out of the judgment and order dated 13th October 2020, passed by the learned APTEL in Appeal No. 283 of 2019 & I.A. Nos. 2188 & 1229 of 2019,....
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....-GWEL. 82. Mr. C.A. Sundaram submits that, from the presentation which was given by the GWEL, it was apparent that it was given on the basis that coal supply would be restricted only to 65%. He submits that, as such, the grant of benefit on account of 'Change in Law' on the ground that there was 100% assurance by CIL is not permissible. He, therefore, submits that the judgment and order of the learned APTEL deserves to be set aside to that extent. 83. Mr. Niranjan Reddy, on the contrary, submits that the bid of GWEL was submitted on 8th June 2012, on which date NCDP 2007 was in force. He submits that, subsequently, the NCDP 2007 was modified on 31st July 2013 and thereafter SHAKTI Policy has come into effect on 22nd May 2017 and, as such, judgment and order of the learned APTEL warrants no interference. Civil Appeal No. 5005 of 2022 and Civil Appeal No. 4089 of 2022 84. These appeals challenge the common judgment and order dated 22nd March 2022 passed by the learned APTEL in Appeal No. 118 of 2021 and 40 of 2022, filed by Rattan India Power Limited (hereinafter referred to as "Rattan India") and Adani Power Maharashtra Limited (for short, "APML") respectively, thereby c....
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....bmitted that the EFC does not partake the character of a statutory levy. However, he submitted that, in any case, it does not have the force of law. He, therefore, submitted that APTEL has grossly erred in holding the circular of CIL dated 19th December 2017 to qualify as 'Change in Law'. 89. Shri Singh further submitted that the direction to pay the carrying cost at the rate provided for Late Payment Surcharge (for short, "LPS") is also not permissible in law. He submitted that this Court, in Adani Rajasthan case (supra), has directed the carrying cost to be paid at the rate of 9% and as such, in the present case, it ought to have been directed to be paid at the same rate. 90. Shri Singh also relies on the judgment of this Court in the case of Ashoka Smokeless Coal India (P) Limited and Ors. v. Union of India and Ors. (2007) 2 SCC 640 in support of the proposition that CIL is free to fix the price of coal and that the Union of India has no control over it. 91. Shri Poovayya, on the contrary, submitted that the levy is mandatory in nature. Unless the said levies are paid, the coal would not be supplied. He further submitted that since the CIL is an instrumentality of the....
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....ulation, Notification or code, rule, or any interpretation of any of them by an Indian Governmental Instrumentality and having force of law. It would further reveal that the term "Law" shall also include all applicable rules, Regulations, orders, Notifications by an Indian Governmental Instrumentality and shall also include all rules, Regulations, decisions and orders of the CERC and the MERC. 95. In any case, the issue as to what would amount to "Law" is no more res integra. This Court, in the case of Energy Watchdog (supra), has observed thus: 57. Both the letter dated 31-7-2013 and the revised Tariff Policy are statutory documents being issued Under Section 3 of the Act and have the force of law. This being so, it is clear that so far as the procurement of Indian coal is concerned, to the extent that the supply from Coal India and other Indian sources is cut down, the PPA read with these documents provides in Clause 13.2 that while determining the consequences of change in law, parties shall have due regard to the principle that the purpose of compensating the party affected by such change in law is to restore, through monthly tariff payments, the affected party to the econom....
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....rned APTEL had found that the Indian Railways is an instrumentality of the State. It has been found that the Busy Season Surcharge, Development Surcharge and Port Congestion Surcharge were increased from time to time vide Circulars/Notifications issued by the Ministry of Railways, through the Railway Board. 102. A Constitution Bench of this Court, in the case of Railway Board, Government of India v. M/s. Observer Publications (P) Ltd. (1972) 2 SCC 266, has held the Railway Board to be a State within the meaning of Article 12 of the Constitution of India. 103. As such, no error could be found in the finding of the learned APTEL that the revision of charges to be paid on Busy Season Surcharge, Development Surcharge and Port Congestion Charges from time to time by the 'Railway Board' would come within the ambit of 'Change in Law'. MoEF Notification on Coal Quality 104. Insofar as MoEF notification on coal quality is concerned, the MoEF, vide Notification dated 2nd January 2014, i.e. subsequent to the particular cut-off date, i.e. 1st June 2012, has mandated power projects to use beneficiated coal with ash content lower than 34%. The draft notification of MoEF dated....
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....irement of EFC, which has been brought into effect only on 19th December 2017. As such, the circular of CIL dated 19th December 2017 would also amount to 'Change in Law'. 111. As discussed herein above, it is also not in dispute that EFC has been paid by the generators while paying the base price, other charges and statutory charges at the time of delivery of coal. As such, no interference would be warranted with the said finding. 112. That leaves us with the issue with regard to carrying cost. Carrying Cost 113. This is the issue on which there is a serious contest between the DISCOMS and the Generators. 114. On one hand, it is the submission of the DISCOMS that since there is no description of the same in the PPAs, the rate for granting carrying cost should be a reasonable rate. On the contrary, it is the submission of the Generators that there is a specific provision in the PPAs, which provides that the carrying cost has to be paid at the rate as per the rate specified for late payment surcharge. It is submitted that this is provided in the PPA so as to give effect to the restitutionary principle. 115. For considering the rival submissions, it will be apposite to r....
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....idering the provisions of Article 11, which deals with 'Billing' and Article 13, which deals with 'Change in Law', has observed thus: 9. It will be seen that Article 13.4.1 makes it clear that adjustment in monthly tariff payment on account of change in law shall be effected from the date of the change in law [see Sub-clause (i) of Clause 4.1], in case the change in law happens to be by way of adoption, promulgation, amendment, re-enactment or repeal of the law or change in law. As opposed to this, if the change in law is on account of a change in interpretation of law by a judgment of a Court or Tribunal or governmental instrumentality, the case would fall Under Sub-clause (ii) of Clause 4.1, in which case, the monthly tariff payment shall be effected from the date of the said order/judgment of the competent authority/Tribunal or the governmental instrumentality. What is important to notice is that Article 13.4.1 is subject to Article 13.2 of the PPAs. 10. Article 13.2 is an in-built restitutionary principle which compensates the party affected by such change in law and which must restore, through monthly tariff payments, the affected party to the same economic....
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.... crossed. It has been held that an in-built restitutionary principle compensates the party affected by such 'Change in Law' and the affected party must be restored through monthly tariff payment to the same economic position as if such 'Change in Law' had not occurred. 119. From the perusal of paragraph 9, it would also be clear that in case the 'Change in Law' happens to be by way of adoption, promulgation, amendment, re-enactment or repeal of the law or 'Change in Law', it has to be effected from the date on which such change occurs. 120. In this respect, it will also be apposite to refer to the following observations of this Court in the case of Maharashtra State Electricity Distribution Co. Limited v. Maharashtra Electricity Regulatory Commission and Ors. (2022) 4 SCC 657: 173. The Aptel correctly found that: (Maharashtra Pradesh Electricity Regulatory Commission case [Maharashtra State Electricity Distribution Co. Ltd. v. Maharashtra Pradesh Electricity Regulatory Commission, , SCC OnLine APTEL para 13) 13.... On the contrary, there is a conscious exclusion regarding any suo motu change in the rate to be applied while calculating LPS, it b....
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....Shree Ambica Medical Stores v. Surat People's Coop. Bank [Shree Ambica Medical Stores v. Surat People's Coop. Bank Ltd., (2020) 13 SCC 564, para 20], cited by Ms. Divya Anand. This appeal is an attempt to renegotiate the terms of the PPA, as argued by Ms. Divya Anand as also other counsel. It is well settled that courts cannot substitute their own view of the presumed understanding of commercial terms by the parties, if the terms are explicitly expressed. The explicit terms of a contract are always the final word with regard to the intention of the parties, as held by this Court in Nabha Power Ltd. v. Punjab SPCL [Nabha Power Ltd. v. Punjab SPCL, (2018) 11 SCC 508, paras 45 and 72: (2018) 5 SCC (Civ) 1], cited by Ms. Anand." 121. This Court has clearly held that the DISCOMS have a contractual obligation to make timely payment of the invoices raised by the power generating companies, subject to scrutiny and verification of the same. This Court has rejected the contention that the funding cost was much lesser than the rate of LPS. This Court has reiterated the proposition that the courts cannot rewrite a contract which is executed between the parties. This Court has emphasiz....
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....i Power, it cannot be urged by the Appellants that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. Grant of compound interest on carrying cost and that too from the date of the occurrence of the change in law event is based on sound logic. The idea behind granting interest on carrying cost is not far to see, it is aimed at restituting a party that is adversely affected by a change in law event and restore it to its original economic position as if such a change in law event had not taken place. xxx xxx xxx 23. We are not persuaded by the submission made on behalf of the Appellants that since no fault is attributable to them for the delay caused in determination of the amount, they cannot be saddled with the liability to pay interest on carrying cost; nor is there any substance in the argument sought to be advanced that there is no provision in the PPAs for payment of compound interest from the date when the change in law event had occurred. 24. The entire concept of restitutionary principles engrained in Article 13 of the PPAs has to be read in the correct perspective. The said principle that governs compensating a p....
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.... examining the material on record, that the factors of SHR and GCV should be considered as per the Regulations or actuals, whichever is lower. The CERC as well as the State Regulatory bodies, after extensive consultation with the stakeholders, had specified the SHR norms in respective Tariff Regulations. In addition, insofar as GCV is concerned, the CEA has opined that the margin of 85-100 kcal/kg for a non-pit head station may be considered as a loss of GCV measured at wagon top till the point of firing of coal in boiler. 121. In this respect, we may refer to the following observations of this Court in the case of Reliance Infrastructure Limited v. State of Maharashtra [(2019) 3 SCC 352]. 38. MERC is an expert body which is entrusted with the duty and function to frame Regulations, including the terms and conditions for the determination of tariff. The Court, while exercising its power of judicial review, can step in where a case of manifest unreasonableness or arbitrariness is made out. Similarly, where the delegate of the legislature has failed to follow statutory procedures or to take into account factors which it is mandated by the statute to consider or has founded its de....
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....NH-DISCOM is concerned, they are aggrieved by the order of the learned APTEL allowing Busy Season Surcharge and Development Surcharge, MoEF Notification on coal quality and Change in NCDP. They are also aggrieved by the finding of the learned APTEL with regard to carrying cost. 133. Insofar as the compensation on the ground of Change in NCDP is concerned, as already discussed, the same is squarely covered by the judgment of this Court in the case of MSEDCL v. APML and Ors. (supra) 134. Insofar as the Busy Season Surcharge and Development Surcharge are concerned, they are issued under the Circulars/Notifications of Indian Railways. The notification on coal quality is issued by MoEF. All these are the instrumentalities of the State, and these would, therefore, amount to 'Change in Law'. 135. Insofar as rest of the claims, which are concurrently allowed and disallowed by both the CERC and the learned APTEL, are concerned, in view of the judgments of this Court on this issue, as stated above, we do not find any reason to interfere with the same, not noticing any perversity, arbitrariness and/or any contravention of the statutory provisions. The appeals of both the Generator ....
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....that all these additional taxes or cesses were introduced by the instrumentalities of the Government of India or by the Government of Chhattisgarh. The same are issued under the provisions of the concerned statutes, rules, notifications, orders, etc. It is thus clear that they would amount to 'Law' within the meaning of the term 'Law' as defined in the PPAs. As such, no error can be found with the order of the learned APTEL. 145. We, therefore, find no merit in the appeals. The appeals are, accordingly, liable to be dismissed. Civil Appeal No. 3123 of 2019 and Civil Appeal No. 5372 of 2019 146. In the present matter, in addition to the claims granted by the CERC, the learned APTEL also granted the following claims: (i) Change in NCDP (cancellation of Captive Block vis-à-vis tapering linkage), (ii) Busy Season Surcharge and Developmental Surcharge, (iii) Carrying Cost; and (iv) Add on Premium Price. 147. Insofar as the issue with regard to change in NCDP is concerned, this Court in the case of Energy Watchdog (supra) so also in Adani Rajasthan case (supra) and recently in MSEDCL v. APML and Ors. (Supra) has held that the change in NCDP would amount....
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....following grounds. i. Shortfall in linkage coal on account of NCDP 2013 and SHAKTI Policy; ii. Change in coal quality pursuant to amendment of the Environment (Protection) Rules, 1986; iii. Increase in Busy Season Surcharge and Development Surcharge on transportation of coal by Indian Railways; and iv. Carrying cost on allowed 'Change in Law' claims. 160. The view taken by the CERC has been affirmed by the learned APTEL. As such, the appeal arises out of the concurrent findings of fact. 161. Insofar as first issue with regard to benefit of 'Change in Law' event on account of NCDP 2013 is concerned, the same is squarely covered by the judgments of this Court in the cases of Energy Watchdog (supra), Adani Rajasthan case (supra) and MSEDCL v. APML and Ors. (supra). 162. Insofar as the benefit of 'Change in Law' on account of SHAKTI Policy is concerned, it is covered by the judgment and order of the even date of this Court in the case of Civil Appeal No. 5684 of 20211 and in the case of Civil Appeal Nos. 677-678 of 20212. 163. The other components, i.e. change in coal quality pursuant to amendment of the Environment (Protection) Rules, 1986, and incr....
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.... largely fulfilled the object sought to be achieved by the Electricity Act. He had stated that delicensed electricity generation resulted in production of far greater electricity than was earlier produced. The learned Attorney General had further urged the Court not to disturb the delicate balance sought to be achieved by the Electricity Act, i.e. that the producers or generators of electricity, in order that they set up power plants, be entitled to a reasonable margin of profit and a reasonable return on their capital, so that they are induced to set up more and more power plants. At the same time, the interests of the end consumers also need to be protected. 171. However, we find that, in spite of this position, litigations after litigations are pursued. Though the concurrent orders of statutory expert bodies cannot be said to be perverse, arbitrary or in violation of the statutory provisions, the same are challenged. 172. It will be relevant to note the following observations of the CERC in its judgment and order dated 16th May 2019, passed in Petition No. 8/MP/2014, which falls for consideration in Civil Appeal No. 39 of 2021 before this Court: (d) Approaching the Commissio....
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....in the value chain of power sector must ensure that there is timely recovery of cost. This involves the cost pass through by the generating companies to the distribution companies. 117. In sharp contrast, it is seen from the factual narrative of the events leading to the appeal at hand that the Appellants (Haryana Utilities) have been adopting dilatory tactics which not only defeats the public policy but also has the undesirable fall-out of adding to the burden of the end-consumers they profess to serve on account of increasing Carrying Cost. 118. Concededly, in compliance with the Taxes and Duties Order dated 06.02.2017, the Appellants paid to the generator the taxes and duties for certain period but, thereafter, unilaterally withheld such claims, raising issues (found merit-less) regarding IPT of coal for first time in January 2018. It is after the impugned order was passed that the Appellants are stated to have started complying, to an extent, by making payments. It is the case of the first Respondent that the Appellants have withheld past payments including towards taxes and duties its entitlement to recover corresponding Late Payment Surchage ("LPS") being over and above t....
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.... account of occurrence of 'Change in Law' events. The learned APTEL found that the Haryana Utilities have been adopting dilatory tactics, which not only defeat the public policy but also have the undesirable fallout of adding to the burden of the end-consumers they profess to serve on account of increasing 'Carrying Cost'. The learned APTEL further found that withholding of past payments, including towards taxes and duties by the DISCOMS, is in violation of the provisions of the PPAs, which casts a specific mandate on the procurer to honour the invoices raised, irrespective of dispute, and impose a specific bar against unilateral deductions/setting off. 175. It is further to be noted that this Court, in the case of Uttar Haryana Bijli Vitran Nigam Limited (UNHVNL) and Anr. v. Adani Power Limited and Ors. (2019) 5 SCC 325, has specifically observed that the 'Change in Law' events will have to accrue from the date on which Rules, Orders, Notifications are issued by the instrumentalities of the State. Even in spite of this finding, the DISCOMS are pursuing litigations after litigations. 176. We find that, when the PPA itself provides a mechanism for payment o....