TaxTMI 
TaxTMI 
2022 (2) TMI 1499
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt dated 31.08.2020, against which the Review Petition No.1811­1812 of 2020 has also been dismissed on 02.03.2021. 2. In short, the dispute in the Civil Appeal was with regard to the certain additional payments which the petitioner claims that it was entitled to because of "change in law". Very briefly stated, the facts are that the petitioner was to supply electricity to the respondent­Discoms, which was to be generated by the petitioner­ company, for which, as per the agreement, the respondents was to supply domestic coal (linkage coal). However, undisputedly, the domestic coal was not provided to the petitioner. Since the petitioner-company was, as per the agreement, required to supply uninterrupted power, it had to purchase....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... payment surcharge only as per the applicable SBAR for the relevant years, which should not exceed 9% with annual compounding. 4. It is noteworthy that after the Order was passed by RERC, while the matter was pending before the APTEL, an interim order was passed by APTEL that pending final decision of the appeal, the Discoms shall pay 70% of the compensation claimed/demanded by the petitioner, as provisional compensation, within two weeks. The said interim order of APTEL was challenged before this Court, which in turn, by an order dated 29.10.2018, directed that instead of 70% of the compensation claimed/demanded by the petitioner, only 50% be paid. It was also noted in the said Order that the total claim was stated to be in the region of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of this Court, a further amount of Rs.2477.70 crores would be payable to the petitioner towards late payment surcharge as per the Power Purchase Agreement (PPA) provision (i.e. SBI PLR + 2%) for the period post due date after billing based on RERC and APTEL Orders in accordance with Article 8.3.5 of the PPA and up to November, 2021. 6. Shri Abhishek Manu Singhvi, learned Senior Counsel appearing for the petitioner has submitted that the only dispute which was to be resolved by RERC, APTEL and this Court was with regard to the payment due because of "change in law", which was held to be the actual landed cost of alternate coal/imported coal as certified by the auditor minus landed cost of domestic linkage coal. There was no other dispute wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sue had never been raised by respondents in any proceedings earlier, as the respondents had, in fact, throughout contested that the petitioner is not entitled to the "change in law" benefit. 7. Per contra, Shri C. A. Sundaram learned Senior Counsel appearing on behalf of the respondents has contended that the regular demands made by the petitioner from the year 2013, included the portion of the price of imported coal as "change in law" because admittedly the petitioner was never supplied the domestic linkage coal. Although Shri Sundaram has raised an issue of the petitioner not being entitled to the benefit with regard to "change in law", but we are not inclined to accept the same as the issue has already been settled by a very detailed ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fect of "change in law", which as per RERC, APTEL and this Court would be the actual landed cost of alternate coal/imported coal minus the landed cost of domestic linkage coal. The question of any claim which the respondents may have against the petitioner, is not an issue before us. As per the principle laid down by RERC and affirmed up till this Court, the petitioner has claimed an amount of Rs.5344.75 crores up to March, 2021. The said principle having been affirmed by the APTEL as well as by this Court and even in Review Petition, cannot be reopened now. It cannot be disputed that after March, 2021 also, the petitioner would be entitled to payment on the basis of the same calculation, which up to November, 2021 comes to Rs.130.69 crores....