TaxTMI 
TaxTMI 
2023 (4) TMI 1371
X X X X Extracts X X X X
X X X X Extracts X X X X
....ry Commission (hereafter "the State Commission"), dated 01.07.2015 [in petition No 1363/2013] was affirmed. 2. The first appellant - Gujarat Urja Vikas Nigam Limited (hereafter "Gujarat Urja") had approached this court previously challenging the order of APTEL, which was disposed of by this court [Civil Appeal No 1253/2019 by order dated 15.02.2019] granting liberty to it, to seek review/rectification. Gujarat Urja then preferred a review petition, which was rejected by APTEL, by the second impugned order. When this appeal was taken up for hearing, on 14.10.2020, this court had issued notice and stayed the impugned order of APTEL. Background 3. Gujarat Urja procures power in bulk on behalf of distribution licensees in the state of Gujarat; it is an authorized licensee within the meaning of the term under the Act. The second, third, fourth and fifth appellants are distribution licensees in the State of Gujarat. The first respondent, Renew Wind Energy (Rajkot) Pvt Ltd (hereafter "RWE") is a wind generator which had set up 25.2 MW Wind Turbine Generators at District Rajkot, Gujarat under the Renewable Energy Certification scheme notified by the Central Electricity Regulatory ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Central Electricity Regulatory Commission (Terms and Conditions for Recognition and issuance of Renewable Energy Certificate for Renewable Energy Generation) Regulations, 2010 (hereafter "REC Regulations 2010") were framed by the Central Commission for the development of a power market for non-conventional sources of energy by the issuance of tradable and saleable credit certificates (hereafter "RECs"). Regulation 5 of the said REC Regulations 2010 provides for the required eligibility for the renewable generators for participating in the RE Certificates: "5. Eligibility and Registration for Certificates: (1) A generating company engaged in generation of electricity from renewable energy sources shall be eligible to apply for registration for issuance of and dealing in Certificates if it fulfills the following conditions: a. it has obtained accreditation from the State Agency; b. it does not have any power purchase agreement for the capacity related to such generation to sell electricity at a preferential tariff determined by the Appropriate Commission; and c. it sells the electricity generated either (i) to the distribution....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the distribution licensees. The regulations also provided that the generators (of renewable energy) were not eligible for any benefits including banking facilities, exemption from payment of cross subsidy surcharge etc. amongst other things. The stated promotional benefits were applicable only in terms of trading and selling of the RE Certificates. 8. The REC Regulations 2010 provided for floor price and forbearance price i.e. minimum price and maximum price respectively at which RECs could be traded in the power exchange. Those prices i.e. floor price and the forbearance prices were to be determined by the central commission for the entire country. 9. In the present case, the State Commission by its order [Dated 30.01.2010 in Order No 1/2010] determined the tariff for procurement of power by distribution licensees from wind energy generators and also ruled on other commercial issues for wind energy generators set up under a preferential tariff mechanism. The order provided for a preferential levelized tariff of 3.56 per kWh for the supply of energy to the distribution licensee for meeting it's Renewable Power Purchase Obligation (RPO). The "control period" of the Order [d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of. 12. The State Commission by its order dated 08.08.2012 [in Order No. 2/2012] determined the tariff at which the power could be procured by the distribution licensees and others from wind power projects commissioned in the control period from 11.08.2012 to 31.03.2016. 13. On 11.07.2013, Central Commission amended the REC Regulations 2010 (hereafter "Second Amendment") and replaced "at a price not exceeding pooled cost of the power purchase "with" at the pooled cost of power purchase"[5] along with the relevant statement of reasons for the said amendment. It was clarified in the amendment that PPAs already executed prior to this amendment at a tariff lower than APCC would not be affected. The first two respondents were aggrieved by the order of the Central Commission. They filed a petition [Petition No. 1363 of 2013] before the State Commission arguing that the terms of the PPA had to be changed in view of the change in the REC regulations. This petition was allowed by the State Commission directing that the order of the Central Commission was general and was therefore applicable to all similarly situated wind power generators. Aggrieved by the order of the State Commissi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inition of the "APPC" cannot be relied upon in the present case[6] and the PPA in question provided for a tariff. There was consequently no bar in any law or regulations for the parties to agree to such tariff and in fact, REC Regulations 2010 itself recognized that the PPA can be "at a price not exceeding the pooled purchase cost". Likewise, for the sale of such power to customers or the licensees, reference is made to "mutually agreed price" and therefore reference to "mutually agreed price" can mean that price can also be a fixed price and need not mean that it has to be dynamic and varying every year. 18. It was argued that the interpretation placed by APTEL is not founded on any express provision in the regulations, or anything arising out of necessary implication. The change in regulations, unless made specifically operable for a prior period, cannot be construed to be retrospective. Thus, contracts concluded prior to the entered into prior to the amendment [in 2013] cannot be governed by amended provisions. Doing so would not only be contrary to the express terms of the amended regulations but would also be contrary to the terms of the PPA which do not accommodate or prov....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on No.1363/ 2013 before the State Commission claiming that the tariff should be the APPC cost year-on-year basis instead of a fixed Rs. 2.64/kWh. This was contrary to the decision by CERC on the application of Second Amendment only prospectively -which is, for PPAs entered on or after 11.07.2013. The state commission by its order (dated 01.07.2015) allowed the respondent's petition and further directed that the order is generic in nature and applicable to all similarly placed WPDswhich was affirmed by the first impugned order. The appellants argue that the governing Regulations for PPAs adopting the REC Mechanism are 2010 REC Regulations and the state commission cannot decide on tariff contrary to the same. When the Central Commission clarified that for PPAs entered into prior to 11.07.2013, the tariff mutually agreed is valid for the entire duration of the PPA (25 years), the state commission and APTEL fell into error in substituting a new tariff at the instance of the WPDs/Respondents. It is pointed out that Rule 8[8] of the Electricity Rules, 2005, notified by the Central Government, is binding, and specifically provides that tariff determined by the Central Commission (CERC) sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the state or central commissions prohibiting a term being incorporated in PPA which permits an option to either party to switch from REC mechanism to Preferential Tariff Mechanism. The impugned order had not considered judgments referred to by the appellants on clauses granting power to one party to cancel the contract. In this regard, reliance is placed on Central Bank of India v Hartford Fire Insurance Co. Ltd[AIR 1965 SC 1288]; and Her Highness Maharani Shantidevi P Gaikwad v Savjibai Haribai Patel & Ors[2001 (5) SCC 101] . Respondents' Submissions 26. Mr. Shyam Divan and Mr. Dhruv Mehta, learned senior counsels appearing for the first two respondents urged that State Commission had jurisdiction in the present case. Reliance was placed on the definitional clause of the PPA (Article 1.1) to submit that commission meant 'State Commission'. It was urged that in terms of the extant regulatory framework, (which provided for regulatory oversight by the appropriate commission), PPAs executed by generating companies and distribution licensees necessarily required approval by the appropriate commission. Firstly, Section 86(1)(b) of the Act specifically vests the State Commission....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arding the Second Amendment to contend that REC contracts cannot be fixed price contracts as they would affect the viability of REC projects as the price band (floor price / forbearance price) are subject to periodic revision. Relevant extracts of the said statement of reasons are reproduced below: "4.3 Analysis and decision Some of the stakeholders have suggested to clarify as to whether the PPAs executed at price lower than APPC would become ineligible under REC Mechanism. It is felt that the tariff for electricity component lower or higher than APPC may lead to avoidable loss or profit to RE generator. The Commission would like to clarify that the intention is not to debar the projects that have executed PPA at tariff lower than APPC. This amendment will apply prospectively and as such will not affect the already executed PPAs at lower than APPC. Regarding suggestion received that PPA of electricity component should be a fixed price long term contract (without escalation) since Commission has assumed fixed price while determining REC price bands in its methodology, it is clarified that the price band is subject to periodic revision; hence fixed APPC or long-ter....
X X X X Extracts X X X X
X X X X Extracts X X X X
....PC along with REC pricing, together, are the tariff determined and approved for the supply of power. In other words, the APPC and REC pricing are two halves of the same whole, which constitute the overall tariff which a generating company registered under the REC mechanism is entitled to receive. APPC along with REC pricing is what was intended to be incorporated as part of the tariff clause in the PPA. If either component is pegged or capped artificially, and that too without approval from GERC, the same would lead to a skewed application of the REC mechanism to the detriment of the generating company, leading to under-recovery and unviability of the RE Generator. 33. It was submitted that the tariff in the PPA was in violation of the principal regulation, which does not contemplate a fixed long-term price/ tariff. It is, therefore, illegal and had to be aligned with the regulation. The APTEL correctly aligned the tariff to the regulation. The regulation has not been challenged and it has the force of statute and it mandates that PPAs should be aligned to the regulations. Reliance is placed on PTC India Ltd. v. CERC (hereafter "PTC India") [(2010) 3 S.C.R. 609] . 34. Counsel....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and renewable sources of energy. The rapid growth of renewable energy over the decade and a half has witnessed that solar and wind power are now the cheapest sources of energy in many countries in the world. Once green energy was an expensive alternative, however, it is now helping to reduce energy bills. 38. The rapidly changing economics of such sources has led, the Union government to realize that solar and other renewables can potentially transform the energy landscape, increase access and help India meet its climate change objectives. Grid transmission capacity has been a barrier; however, distributed and off-grid solar solutions provide a viable solution for increasing energy access. Being dependent primarily on cheap coal-based power generation, traditional thinking on energy has been that increase in renewable energy's share of electricity generation would further impair local distribution companies' poor financial situation. Over the years, India has established a comprehensive policy and regulatory frameworks to encourage renewable energy development. India began its development of wind power in the 1990s and has significantly increased its capacity over the last few y....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ined accreditation from the State Agency; (b) it does not have any power purchase agreement for the capacity related to such generation to sell electricity at a preferential tariff determined by the Appropriate Commission; and (c) it sells the electricity generated either-(i) to the distribution licensee of the area in which the eligible entity is located, at a price not exceeding the pooled cost of power purchase of such distribution licensee, or (ii) to any other licensee or to an open access consumer at a mutually agreed price, or through power exchange at market determined price. What is meant by "pooled cost or purchase" is elaborated in the Explanation (to Regulation 5) to mean "the weighted average pooled price at which the distribution licensee has purchased the electricity including cost of self-generation, if any, in the previous *year from all the energy suppliers long-term and short-term, but excluding those based on renewable energy sources. as the case may be." 41. The objectives of the REC Regulations 2010 were described in the judgment of this court, reported as Hindustan Zinc Ltd. v. Rajasthan Electricity Regulatory Commission [(2015) 7 S.C.R. 1104] "44....
X X X X Extracts X X X X
X X X X Extracts X X X X
....5, shall be utilized for fulfillment of the RPO in accordance with column 2. Provided further that such obligation to purchase renewable energy shall be inclusive of the purchases, if any, from renewable energy sources already being made by the obligated entity concerned: Provided also that the power purchases under the power purchase agreements for the purchase of renewable energy sources already entered into by the distribution licensees shall continue to be made till their present validity, even if the total purchases under such agreements exceed the percentage as specified hereinabove." 43. In terms of Regulation 9 (1) of the Renewable Sources Regulations, if an obligated entity[10] (such as the present appellant) does not fulfil the renewable purchase obligation as provided in the regulations during any year and also does not purchase the certificates, the State Commission may direct the obligated entity to deposit into a separate fund, to be created and maintained by such obligated entity, such amount as the State Commission may determine. Thus, obligated entities, (distribution licences included) had to take steps to progressively increase the purchase of power f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Term of the agreement: This agreement shall become effective upon the executive and delivery thereof by the parties hereto and unless terminated pursuant to other provisions of the agreement, shall continue to be in force for such time until the completion of a period of 25 (twenty five) years from the commercial operation date." ............................. Did the PPA in the present case, require prior approval of the state commission 45. RWE and the other respondents urge that the PPA was unenforceable because it was not approved by the State Commission. This court is of the considered view that the argument is unmerited and insubstantial. 46. The State Commission's regulations (Renewable Sources Regulations) relating to procurement of energy from Renewable Sources, provides, inter alia, pertinently, as follows: "3. Applicability of Renewable Purchase Obligation: These Regulations shall apply to: (1) Distribution licensee (2) Any other person consuming electricity (i) generated from conventional Captive Generating Plant having capacity of 5 MW and above for his own use and / or (ii) procured from conventional generation through open ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fits to purchasers and tariff payable to power purchasers which did not avail of the benefit of accelerated depreciation. The respondent Emco had not availed accelerated depreciation. Despite that, it approached the Gujarat State Commission, seeking a determination of the tariff afresh, contending that the position had changed. This court noticed that the power purchaser had contended that notwithstanding that it entered into a PPA during the control period, it was not obliged to sell power to the distributor for a price specified in the PPA and was legally entitled to seek fixation of separate tariff. The Court rejected the contention after noticing the arguments. The relevant extracts of the judgment (In Emco Ltd.) are as below: "11. The case of the first respondent is that notwithstanding the fact that it entered into a PPA during the "control period" specified in the First Tariff Order, it is not obliged to sell power to the appellant for the price specified in Article5.2 of the PPA and is legally entitled to seek (from the second respondent) fixation of a separate tariff. It is the further case of the first respondent that under the PPA, the appellant is under an obli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e first respondent to the "tariff as determined by the" second respondent by the Second Tariff Order. On the other hand, the PPA clearly stipulates that in such an eventuality: "Above tariff shall apply for solar projects commissioned on or before 31-12-2011. In case, commissioning of solar power project is delayed beyond 31-12-2011, GUVNL shall pay the tariff as determined by the Hon'ble GERC for solar projects effective on the date of commissioning of solar power project or abovementioned tariff, whichever is lower." (emphasis supplied)" 50. In Transmission Corporation of Andhra Pradesh Ltd (Supra), the state commission had, by an order dated 20.06.2001 directed generators of nonconventional energy to supply power exclusively to the A.P. Transmission Corporation. Energy developers were not permitted to sell power to third parties. The Commission also approved the rate prevailing earlier for supply @ Rs. 2.25/- per unit with a 5% escalation per annum from 1994-1995 being the base year. The parties entered into PPA after the passing of the Regulatory Commission's order. The PPA embodied or reflected the tariff @ 2.25/- per Rs. unit with escalation @ 5% per annum ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... subsequent to the issuance of the order dated 20-6 2001. Different persons executed the contracts at different times in full awareness of the terms and conditions of such PPAS. To frustrate a contract on the ground of duress or coercion, there have to be definite pleadings which have to be substantiated normally by leading cogent and proper evidence. However, in the case where summary procedure is adopted like the present one, at least some documentary evidence or affidavit ought to have been filed raising this plea of duress specifically. 43. [..] From the record before us, nothing was brought to our notice to state the plea of duress and to prove the alleged facts which constituted duress, so as to vitiate and/or even partially reduce the effect of the PPAs. On the one hand, the Tribunal appears to have doubted the binding nature of the contracts stating that they contained unilateral conditions introduced by virtue of order and approval of the Regulatory Commission, while on the other hand, in para 53 of the order, it proceeded on the presumption that PPAS are final and binding and still drew the conclusion that the Regulatory Commission could not revise the tariff. Ev....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that: 35. This Court should be specially careful in dealing with matters of exercise of inherent powers when the interest of consumers is at stake. The interest of consumers, as an objective, can be clearly ascertained from the Act. The Preamble of the Act mentions "protecting interest of consumers" andSection61 (d) requires that the interests of the consumers are to be safeguarded when the appropriate Commission specifies the terms and conditions for determination of tariff. Under Section 64 read with Section 62, determination of tariff is to be made only after considering all suggestions and objections received from the public. Hence, the generic tariff once determined under the statute with notice to the public can be amended only by following the same procedure. Therefore, the approach of this Court ought to be cautious and guarded when the decision has its bearing on the consumers. 36. Regulation 85 provides for extension of time. It may be seen that the same is available only in two specified situations - (i) for extension of time prescribed by the Regulations, and (ii) extension of time prescribed by the Commission in its order for doing any act. The contr....
X X X X Extracts X X X X
X X X X Extracts X X X X
...."control period" the first respondent will be entitled only for lower of the tariffs." 54. Similarly, in Bangalore Electricity Supply Co. Ltd. vs. Konark Power Projects Ltd. & Ors[(2016) 13 SCC 515] this court held as follows: "13. The contention that Under Regulations 5.2, 5.3, 5.4 of the 2004 Regulations as well as Sections 61 and 62 of the Electricity Act, power is vested with the Commission to vary the tariff is concerned, such power specifically provided for in the said Regulations will only operate prior to fixing of the tariff once the concerned Power Purchase Agreements are ultimately concluded and the terms are agreed between the parties under the Power Purchase Agreements, thereafter, in our considered opinion, Regulation 5.1 of the 2004 Regulations alone would apply in the case of the parties before us. Consequently, there was no scope for the Commission to vary the tariff agreed between the parties under the approved Power Purchase Agreement." 55. Section 61 of the Act enacts the basis for tariff determination. On the other hand, Section 62 is concerned with the fixation of various other charges and tariffs. Section 64 lists the manner and procedure for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for WPDs not opting for the REC Mechanism was Rs. 3.56/kWh. The WPDs were not entitled to any additional REC benefits, had they adopted the preferential tariff route. 57. The respondents successfully complained before the State Commission, and APTEL, that the PPA, which they had entered into with Gujarat Urja, whereby the tariff was fixed at Rs. 2.64/kWh (with the price of RECs sold by them) was, in the long run, less beneficial than Rs. 3.56/kWh. During the hearing, it was sought to be urged that the cost of RECs in the exchange, had been decreasing, whereas the preferential tariffs had risen. On this aspect, Regulation 9 of the REC Regulations 2010 prescribes the price determination mechanism for RECs in the power exchange. Proviso to Regulation 9 (1) of the REC Regulations 2010 empowers the central commission, in consultation with the Central Agency and the Forum of Regulators, to provide the floor price and forbearance price separately for solar and non-solar certificates. This provision is important because it enables regulatory intervention in the public interest: if the price went below a certain limit, the floor price was to be prescribed, to take care of the interests o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fifth year. This tariff shall be applicable for purchase of wind energy by Distribution Licensees/ other entities for complying with the renewable power purchase obligations specified in the regulation by commission from time to time. This tariff is applicable to wind energy projects which commission brand new wind energy plants and equipments on 11th August, 2009 onwards." 59. In the present case, the PPA was entered into by the parties on 29.03.2102, within the control period stipulated in the tariff order of 2010. The change in the REC Regulations 2010, whereby the Explanation to Regulation 5 was amended resulted in a change. The pre-existing clause that the power would be "at a price not exceeding pooled cost of the power purchase" was altered to "at the pooled cost of power purchase". This change, was through the Second Amendment (to the REC Regulations), carried out on 10.07.2013. It is a matter of record, that for the period between 29.03.2102 and 10.07.2013 - and indeed, after the Second Amendment, no difficulty was experienced in the pricing mechanism agreed by the parties, under the PPA. It was on 10.12.2013 that the respondent WPD approached the state commission for r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....te commissions possess the power to vary existing contracts, especially PPAs: "40. [..] To regulate is an exercise which is different from making of the regulations. However, making of a regulation under Section 178 is not a precondition to the Central Commission taking any steps/measures under Section 79(1). As stated, if there is a regulation, then the measure under Section 79(1) has to be in conformity with such regulation under Section 178. This principle flows from various judgments of this Court, which we have discussed hereinafter. For example, under Section 79(1)(g), the Central Commission is required to levy fees for the purpose of the 2003 Act. An order imposing regulatory fees could be passed even in the absence of a regulation under Section 178. If the levy is unreasonable, it could be the subjectmatter of challenge before the appellate authority under Section 111 as the levy is imposed by an order/decision-making process. Making of a regulation under Section 178 is not a precondition to passing of an order levying a regulatory fee under Section 79(1)(g). However, if there is a regulation under Section 178 in that regard then the order levying fees under Sectio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing contracts. This itself indicates the width of the power conferred on CERC under Section 178 of the 2003 Act. All contracts coming into existence after making of the impugned 2006 Regulations have also to factor in the capping of the trading margin. This itself indicates that the impugned Regulations are in the nature of subordinate legislation. Such regulatory intervention into the existing contracts across the board could have been done only by making regulations under Section 178 and not bypassing an order under Section 79(1)(j) of the 2003 Act. Therefore, in our view, if we keep the above discussion in mind, it becomes clear that the word "order" in Section 111 of the 2003 Act cannot include the impugned 2006 Regulations made under Section 178 of the 2003 Act." 63. Whilst there cannot be any doubt that regulations framed under the Act can be made applicable to existing contracts, what is discernible from PTC India (supra) is that in that case, the applicability of the Trading Margin Regulations which for the first time, compelled persons engaged in trading of electricity, in terms of Section 2 (17) of the Act, to register, obtain licenses, and operate within the margin li....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit : law looks forward not backward. As was observed in Phillips v. Eyre [Phillips v. Eyre, (1870) LR 6 QB 1], a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law. 32. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in [L'Office Cherifien des Phosphates v. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lysis of the facts and submissions of the learned counsel for the Appellants as well as the Respondents, we hold that the findings of the State Commission are just and right in accordance with law." 68. In Transmission Corporation of Andhra Pradesh Ltd (supra), this court observed, in the context of a contention of coercion, as follows: "42. [..] To frustrate a contract on the ground of duress or coercion, there have to be definite pleadings which have to be substantiated normally by leading cogent and proper evidence. However, in the case where summary procedure is adopted like the present one, at least some documentary evidence or affidavit ought to have been filed raising this plea of duress specifically.[..]" 69. In Shanti Budhiya Vesta Patel & Ors. v. Nirmala Jayprakash Tiwari& Ors. [(2010) 4 S.C.R. 958] , this court held that to establish fraud or coercion, there should be"(a) an express allegation of coercion or fraud, and (b) all the material facts in support of such allegations must be laid out in full and with a high degree of precision. In other words, if coercion or fraud is alleged, it must be set out with full particulars." The court had cited and appli....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... view of the foregoing discussion, it is held that the concurrent findings and orders of the State Commission and APTEL cannot be sustained. They are accordingly set aside. The appeals are allowed, with costs payable to the appellants. [1] The relevant extract of Section 86 is as follows: "86. Functions of State Commission.-(1) The State Commission shall discharge the following functions, namely:- (a) determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be, within the State: ...... (b) regulate electricity purchase and procurement process of distribution licensees including the price at which electricity shall be procured from the generating companies or licensees or from other sources through agreements for purchase of power for distribution and supply within the State; (c) facilitate intra-State transmission and wheeling of electricity; ..... (e) promote co-generation and generation of electricity from renewable sources of energy by providing suitable measures for connectivity with the grid and sale of electricity to any person, and also specify....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndment to Regulation 5 (c), reads as follows: "(2) In sub-clause (c) of clause (1) of Regulation 5 of the Principal Regulations, the words "at price not exceeding the pooled cost of the power purchase of such distribution licensee" shall be substituted with the words "at the pooled cost of power purchase of such distribution licensee as determined by the Appropriate Commission"." [6] APPC as clause 1.1 of the PPA is defined as: "Average Power Purchase Cost" means the weighted average pooled price at which the distribution licensee has. Purchased the electricity including cost of self-generation, if any, in the previous year from all the energy suppliers long-term and short-term; but excluding those based on renewable energy sources, as the case may be. Further, for this agreement, Average Power Purchase Cost for the term of the agreement shall be as per Article No. 5.2 [7] Dated 10.07.2013, which inter alia, stated that "Some of the stakeholders have suggested to clarify as to whether the PPAs executed at price lower than APPC would become ineligible under REC Mechanism. It is felt that the tariff for electricity component lower or higher than APPC ....