CASE No. 173 of Coram. Shri Anand B. Kulkarni, Chairperson Shri Mukesh Khullar, Member

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1 Before the MAHARASHTRA ELECTRICITY REGULATORY COMMISSION World Trade Centre, Centre No.1, 13th Floor, Cuffe Parade, Mumbai Tel /65/69 Fax Website: CASE No. 173 of 2017 In the matter of Petition of Serum Institute of India Pvt. Ltd seeking directions for compliance of Distribution Open Access Regulations, 2016, and Open Access Practice directions dated Coram Shri Anand B. Kulkarni, Chairperson Shri Mukesh Khullar, Member Serum Institute of India Pvt. Ltd..Petitioner Vs 1) Maharashtra State Electricity Distribution Co. Ltd., Mumbai 2) The Chief Engineer, Commercial, MSEDCL 3) The Superintending Engineer, Pen Circle, MSEDCL 4) The Superintending Engineer, Ganeshkhind, Pune, MSEDCL 5) The Superintending Engineer, Pune Rural Circle, MSEDCL 6) The Superintending Engineer, Baramati Rural Circle, MSEDCL.. Respondents Appearance: For the Petitioner For the Respondents : Shri. Pramod N. Patil (Adv.) : Shri. Ashish Singh (Adv.) MERC Order in Case No. 173 of 2017 Page 1 of 17

2 ORDER Dated: 7 July, 2018 Serum Institute of India Pvt. Ltd (SIIPL), 212/2, Hadapsar, off Soli Poonawalla Road, Pune, has filed a Petition on 28 November, 2017, citing Sections 86,142,146 and 149 of the Electricity Act 2003 (EA, 2003), seeking directions for compliance of Distribution Open Access Regulations, 2016, and Open Access Practice directions dated SIIPL s prayers are as follows: a) The Petition be admitted; b) To hold and declare that the Respondents ought to have granted and are bound to grant banking facility to wind generated by the Petitioner till December 2016 as impugned herein; c) Direct the Respondents to allow adjustments of banked energy, which ought to have done in the corresponding months of January, February and March, 2017 or to compensate the Petitioner, in the event of lapsing of the said units; d) Direct the Respondents to give MTOA adjustment of FY of the respective consumer in view of the submissions made in PARA 10 (a) hereinabove. e) Direct the Respondents to grant NOC / Open Access to the consumers of the Petitioner for the FY ; f) Direct the Respondents to allow non-discriminatory STOA on the actual capacity as sought by the petitioner's consumers at their consumption end; g) Direct the Respondents to compensate the Petitioner, on account of losses suffered by the Petitioner due to the arbitrary and illegal act of the Respondents; by causing delay/denial of NOC / Open Access / Banking to the Petitioner, as mentioned in the present Petition, contrary to the provisions of the MERC DOA Regulations, 2016 and EA, 2003; h) Direct the Respondents to pay a compensation to the Petitioner, as may be determined by the Hon'ble Commission in terms Section 57 of the EA, 2003; i) Issue appropriate Orders or Directions under Section 142/146/149 against the Respondents; j) Pass any other Order which this Hon'ble Commission deems fit and proper in the interest of justice and good conscience MERC Order in Case No. 173 of 2017 Page 2 of 17

3 3. The Petition states as follows: 3.1 Serum Institute of India Pvt. Ltd (SIIPL) is a Wind Power Generating Company and is engaged in supplying wind power to various consumers situated in MSEDCL s area under Short Term Open Access (STOA) /Medium Term Open Access (MTOA). 3.2 SIIPL has filed the Petition on following three issues : i. Rejection/Partial approval of Short Term Open Access (STOA) Applications for FY ; ii. Non adjustment of Banking units till December 2016 in the bills of January, February and March, 2017; iii. Non Adjustment of Medium Term Open Access (MTOA) units in FY ISSUE 1. Rejection/Partial approval of STOA Applications for FY : a. SIIPL is a Wind Power Generator and is supplying power under STOA/MTOA to several consumers. b. Open Access Consumers had applied to MSEDCL under STOA for getting wind power from SIIPL. Some are approved and some are rejected. c. For FY , MSEDCL arbitrarily started either rejecting STOA applications or arbitrarily reduced the capacity of the resultant power of Open Access applied for on the ground of technical constraints. d. The action of MSEDCL in not granting OA to the consumers availing as per capacity applied for and thereby reducing the quantum of the STOA for FY is unfair and illegal; e. DOA Regulations, 2016 provides right to Open Access consumers to choose the quantum to be sourced from the Generators for their consumption. f. The act of MSEDCL in rejecting STOA applications and reducing the quantum of OA as sought by the OA consumers, without assigning any reason, is not only arbitrary but also contrary to the provisions of the EA, 2003 and DOA Regulations, Earlier, MSEDCL had granted OA without raising technical constraints, however presently the action of raising various technical constraints puts forth, the malafide intention of MSEDCL. 3.4 ISSUE 2 : Non-adjustment of Banking Units till December 2016 in the bills of January, February and March, 2017 a. In the month of December 2016, MSEDCL had levied heavy and arbitrary wheeling charges on the Open Access transaction in violation of DOA MERC Order in Case No. 173 of 2017 Page 3 of 17

4 Regulations, As a result the Open Access consumers were constrained to stop applying for STOA for wind power from SIIPL. b. Subsequently, in the month of December, 2016, MSEDCL admitted to the aforesaid illegal charging of wheeling charges and refunded the additional wheeling charges to the said Open Access consumers, however MSEDCL failed to issue adjustments for the said banked wind power into the grid of the MSEDCL till December 2016, after setoff, in the corresponding billing months of January, February and March c. The Banking of electricity is a benefit extended to the power generated from a Wind Energy Generator since the wind energy cannot be scheduled on a real-time basis. The consumers of SIIPL stopped availing wind energy through OA from SIIPL from January, 2017, due to the illegal additional wheeling charges levied by MSEDCL. However, MSEDCL failed to compensate SIIPL by adjustments for the wind power banked with MSEDCL, after setoff, till December, 2016, in the corresponding months of January, February and March d. Regulation 20.2 of DOA Regulations, 2016 mandates that the surplus energy from a non-firm RE Generating Station after set-off shall be banked with the Distribution Licensee. Further, Regulation 20.3 of the aforesaid Regulation mandates that the banking year shall be the financial year from April to March. e. The Appellate Tribunal for Electricity (APTEL) in its Judgment dated 1 August, 2014, in Appeal No. 59 of 2013 and 116 of 2013 has also observed that Banking of wind energy is an essential feature for the commercial viability of a wind energy generator. The said observation of the APTEL is reproduced as below 31. Banking of wind energy is an essential feature to enable commercial viability of a wind energy generator supplying power to a consumer, captive or otherwise, through open access. The quantum of generation at the wind energy generator varies during the time of the day and season to season from nil to full capacity and does not match with the load profile of the consumer. The generation of wind energy generator in excess of the load of the open access consumer in a metering time block is fed into the grid and consumed by the Distribution Licensee. Various State Commissions have provided different type banking facilities to the wind energy generators to discharge their function of promotion of renewable sources of energy under the Electricity Act, 2003 under which the surplus energy injected by the wind energy generator and utilized by the Distribution Licensee is considered as banked energy which is supplied. MERC Order in Case No. 173 of 2017 Page 4 of 17

5 3.5 ISSUE 3 : Non Adjustment of MTOA units in consumer Electricity Bill for FY : a. MSEDCL had issued MTOA permissions wherein SIIPL were the supplier of wind units to the following respective consumers: Consumer Kores India Ltd (Consumer No ) Kores India Ltd (Consumer No ) Metalyst Forgings Ltd (Formerly known as Ahmednagar Forgings Ltd Consumer No ) MTOA reference No and issue date MTOA/Wind Third Party/6915 dtd 25 th March 2017 MTOA/Wind Third Party/6352 dtd 21 st March 2017 MTOA/Wind Third Party/6433 dtd 21 st March 2017 MTOA Period of Application Date MTOA to to to b. Since the MTOA permissions were granted belatedly, MSEDCL had sent an on 11 May, 2017 to all its field offices, including Respondent Nos. 3 to 6 and instructed them to give adjustment of MTOA period in respective Open Access consumer bills. The relevant para of said is reproduced as below: With reference to above subject it is to inform that this office has issued some MTOA permissions in the month of Feb-March 17 for retrospective period. In this case it is observed that, some consumers have availed STOA permissions before the commencement of MTOA permission, but due to procedural delay the MTOA permissions are issued lately therefore the consumers are billed as normal HT consumer for the period due to non availability of MTOA permissions at the time of billing. Now, though the MTOA permissions are issued for retrospective periods the banking units are not available in system for further adjustment. MERC Order in Case No. 173 of 2017 Page 5 of 17

6 In this case it is to inform that all the energy bills w.e.f. the commencement of MTOA permissions have to be revised upto March 17 so that the correct adjustment of banking units will be given. As the banking year is April to March. The unadjusted banked units at the end of March 17 limited to 10% of total generation will be purchased by MSEDCL. Chief Engineer Commercial MSEDCL Mumbai c. Even after receiving the aforesaid instructions, the Respondent Nos. 3 to 6 failed to give the MTOA units adjustment till date, with respect to the respective OA consumers. 4. In its submission dated 12 January, 2018, MSEDCL stated that: 4.1 SIIPL has no locus to file the present Petition. The pleadings in the Petition clearly demonstrate that the alleged affected party is not SIIPL but several consumers. Moreover SIIPL is also not a consumer. It is an established rule of law, that a person seeking a relief shall first establish as to how he is an affected party. In the present case except for the fact that it is a Generator, no other facts or allegations are attributable to SIIPL. The whole case is being pleased on behalf of consumers by SIIPL without proper authority. 4.2 The issues in the present Petition can be broadly classified as under: (i) Issue 1: Grant of permission for MTOA (ii) Issue 2: Adjustment of Banking of unit s without availing Open Access. (iii) Issue 3: Denial/Partial approval of STOA for the month of May & June, Issue 1: Grant of permission for MTOA: MSEDCL has now granted MTOA to all the consumers. Hence no issue under consideration survives for adjudication by the Commission. 4.4 Issue 2: Adjustment of Banking of units without availing Open Access. a. The consumers of SIIPL have availed Open Access till December, 2016 and have not sought any Open Access for consequent months. Now SIIPL seeks adjustment of banked units till March, 2017 without seeking Open Access which is completely an incorrect understanding. MSEDCL has framed following questions for the consideration of the Commission: (i) Whether banking as a facility can be availed by a consumer/generator when actually no Open Access is sought. MERC Order in Case No. 173 of 2017 Page 6 of 17

7 (ii) Whether a consumer/generator can avail the banked units intermittently and seek benefits thereof for the entire year, when actually no Open Access is sought in between. (iii) Whether the banked units lapse, limited to 10% of total generation or unutilized energy whichever is less, if a consumer/generator opts out of Open Access, in between the year and then again seeks Open Access after an intermittent period. (iv) Whether the banked units lapse, limited to 10% of total generation or unutilized energy whichever is less, when a generator/developer stops voluntarily feeding energy into the grid of MSEDCL and sells it to some other Licensee. (v) Whether banking as a facility can be availed without any continuity in Open Access. b. The facility of banking has been completely misunderstood by SIIPL. Moreover the whole premise of the present Petition is based on the assumption by SIIPL treating banking as a right or a privilege which is absolutely contrary to the initial order dated passed by the Commission in Case No. 17 (3), 3, 4 & 5 of 2002 providing for banking facility. c. Moreover, SIIPL through the present Petition wants adjustment of banked energy in the monthly billing of consumers where in fact, for those months no Open Access was sought for, meaning thereby that no banking was carried out for that month. 4.5 Issue 3: Denial/Partial approval of STOA for the month of May & June, a. The consumers Metalyst Forging Ltd, SKS Fastener Ltd., Atlast Cast Alloy Ltd., Alicon Cast Alloy Ltd. and Mahindra Sanyo Special Steel Pvt. Ltd. of SIIPL applied for STOA for the month of May, June, July, August and September 2017 in April b. On , , , , , , , and , MSEDCL vide s informed the consumers that the resultant power flow cannot be accommodated in the existing system (CT ratio) of MSEDCL as the resultant power flow was more than the Contract Demand/CT/PT installed at the premises. c. In view of the same, MSEDCL called upon the consumers to submit an Undertaking that in any event they will not exceed the Contract Demand of MSEDCL. Such undertaking was never submitted by consumers. Hence STOA was denied. MERC Order in Case No. 173 of 2017 Page 7 of 17

8 d. It is pertinent to note that without valid Open Access permission from MSEDCL, the Generator has injected power into the grid in complete violation of the grid code. 5. At the hearing held on 16 January, 2018, Advocate of SIIPL stated that it has received MSEDCL s reply yesterday and hence sought 10 days to file its Rejoinder. The Commission accepted the request and adjourned the matter. 6. In its Rejoinder dated 1 February, 2018, SIIPL stated that: 6.1 SIIPL has Power purchase Agreement with its consumers for power supply and these consumers make payments only after adjustment of units to the Petitioner and therefore the Petitioner is an affected party. The Generator s name appears on all the NOC and in case the units are not adjusted it would be huge loss to the Generator. Therefore the SIIPL has locus to file the Present Petition. 6.2 It is incorrect to state that SIIPL has applied for MTOA permission but it is a fact that it has asked for adjustments of wind units of MTOA permission. 6.3 All the contentions of MSEDCL have been dealt and adjudicated by the Commission in its Order dated 15 January, 2018 Case No. 137 of SIIPL case is identical. 6.4 MSEDCL is incorrect in saying that the consumers did not submit the Undertaking, since the of the consumers in this respect has been submitted by MSEDCL itself in its reply. 6.5 The practice of Undertaking started from June, 2017, hence the May, 2017 may be exempted from the Undertakings. 6.6 MSEDCL has flouted the directions in MA No. 12 of 2017in Case No. 76 of 2017 dated 27 June, In its additional submission dated 17 May, 2018, MSEDCL stated that: 7.1 The Respondent No 2 had informed Respondent 3, 4 & 5 that all the energy bills w.e.f. the commencement of MTOA permissions had to be revised upto March 2017 so that the correct adjustment of banking units could be given. Since the banking year is April to March, the unadjusted banked units at the end of March 2017 limited to 10% of total generation will be purchased by MSEDCL. 7.2 On the issue of adjustment of wind units of MTOA permission, MSEDCL stated that the MTOA permission were issued in March 2017 retrospectively w.e.f. September 2016, therefore the billing of March 2017 in respect of Kores (Consumer No. MERC Order in Case No. 173 of 2017 Page 8 of 17

9 ) was carried out as per the MTOA permission. As the permission was granted retrospectively from September 2016, credit adjustment for the period from September 2016 to March 2017 was given in the month of December Further, MTOA permission to Kores India limited (Consumer No ) was issued on 21 March 2017 for the period to The consumer has availed STOA for the months June 2016, July, 2016 and November, 2016, December, 2016 and January, Accordingly, the banking units have been given to Kores in the month of November Similarly, the MTOA permission to Ahmednagar Forgings Limited (Consumer No ) was issued on 21 March 2017 for the period to The consumer has availed STOA for the months May, 2016, June, 2016, July, 2016 and Nov, 2016, Dec, 2016, Jan, 2017 and Feb, The Open Access bills were revised from commencement of Open Access and the correct banking adjustment was given to the consumers. 7.3 SIIPL has tried to take the precedent of Commission s Order in Case 137 of 2017 (Krishna Valley (KVPL) & Sahyadri (SREPL) vs MSEDCL. The subject matter of these two cases is diverse. KVPL & SREPL had discontinued STOA for a month whereby it sought STOA from BEST and again re-applied for STOA from the month of January, 2017 onwards. The Commission noted in its Order dated that adjustment of banked energy in consumer bills from January, 2017 onwards should be done only if the same consumer has sought Open Access from same Generator. SIIPL was not in Open Access after December, 2016 at all due to which the banking credits could not be adjusted in the ensuing bills for the Month of January, February, and March MSEDCL was earlier complying with MERC (Distribution Open Access) and (Transmission Open Access) Regulations, Practice Directions dated , whereby the applicants were intimated in writing within a stipulated period of time if their existing distribution and metering system required any augmentation or up gradation before Open Access to the extent applied for. The relevant paragraph of the Practice Direction dated is reproduced as below: 3...the Regulations also provide that the Distribution Licensee verify the availability of necessary infrastructure and capacity of the distribution system, and grant Medium or Short-Term Open Access only if the resultant power flow can be accommodated in the existing distribution system. If the existing distribution and metering system requires any augmentation or upgradation before Open Access to the extent applied for can be provided, it shall intimate the Applicant accordingly, in writing and in the stipulated time, and follow the procedure specified in the Electricity Supply Code and Standards of Performance Regulations. MERC Order in Case No. 173 of 2017 Page 9 of 17

10 7.5 Thereafter, post release of the MERC (Distribution Open Access) and (Transmission Open Access) Regulations, 2016, Practice Directions dated 8 March, 2017; all the applicants were informed about their shortcoming in the application for which they had to submit an undertaking. Therefore, irrespective of the month of filing of application, the consumers have a mandate to submit an undertaking retrospectively after 8 March, 2017 in the event of any shortcomings. The relevant para. of the practice directions dated 8 March, 2017 has been reproduced as below: 5. Where an Application is made for Transmission or Distribution Open Access to the Nodal Agency, it shall communicate any preliminary or procedural deficiency (such as non-submission in the prescribed format, and other such miscellaneous deficiencies) within three working days from its receipt so that the Applicant has time to rectify the deficiency 7.6 SIIPL has accused MSEDCL of flouting the Commission s Order dated 27 June, 2017 in Miscellaneous Application No. 12 of 2017 in Case No. 76 of 2017 and contended that once the directions were issued by the Commission, MSEDCL was duty bound to adhere to such directions. However, SIIPL failed to look into the Daily Order of the same case whereby the Commission had expressly directed MSEDCL to resolve issues by way of separate suitable undertaking or otherwise, instead of unilaterally deciding the issue at its level. The relevant para of the Daily Order dated 16 May, 2017 is reproduced as under: 6. As regards the prayer of the Petitioner for interim relief, the Commission observed that the issue has wide ramifications and there could be many other similar cases, and that hence it is not inclined to grant ad-interim relief to the Petitioner. However, the Commission directs MSEDCL to have the issues clarified before grant of Open Access to avoid future complications, by way of separate suitable undertaking or otherwise instead of unilaterally deciding the issue at its level. 8. At the hearing held on 16 June, 2018, SIIPL and MSEDCL reiterated their submissions. Advocate of the Petitioner stated that there are three issues in the Petition, out of which third issue regarding the adjustment of MTOA has been resolved. Two issues that remained are regarding the rejection/ partial approval of the STOA and adjustment of the banked energy in the bills of January, 2017 to March, Advocate of MSEDCL explained that, in the Case No. 137 of 2017, the Open Access Consumers came back after discontinuation of the Open Access during the same financial year. There was discontinuation of Open Access in the month of December; however the consumers came back in January. The Commission has categorically said in Case No. 137 of 2017, that if the same consumer has come with same Generator, then the banking be provided. In this present Case the Petitioner s consumers have not came back in Open Access after December, MERC Order in Case No. 173 of 2017 Page 10 of 17

11 Regarding the issue of resultant power flow, the Petitioner has given unconditional Undertakings curtailing their Open Access Demand. Thereafter, MSEDCL has granted the Open Access base on their Undertakings. 9. In its additional submission dated 19 June, 2018, SIIPL stated that: Issue of rejection of STOA application for FY : 9.1 The DOA regulations have provided freedom to the Open Access consumers the right to choose the quantum to be sourced from the Generator for their consumption. 9.2 MSEDCL is misusing the powers under Regulation 8.10 of the DOA Regulations for their own benefit without maintaining any transparency on the actual technical constraints. 9.3 MSEDCL has flouted the Commission s Order dated 27 June, 2017 in MA No. 12 of 2017 in Case No. 76 of Issue of non adjustment of banked units till December, 2016 in the bills of January, February, and March, 2017: 9.4 The banking of electricity is a benefit extended to the power generated from Wind energy generator since it cannot be scheduled on a real- time basis. The consumers of the Petitioner stopped availing wind energy through Open Access from the Petitioner from January, 2017 due to wrong wheeling charges levied by MSEDCL. 9.5 MSEDCL failed to compensate the Petitioner by adjustment for the wind power banked with MSEDCL, after setoff till December, 2016, in the corresponding months of January, February, and March, Regulation 20.2 of the DOA Regulations, 2016 mandates that the surplus energy from a non firm RE generating Station after set-off shall be banked with the Distribution Licensee. Regulation 20.3 of the DOA Regulations, 2016 mandates that the banking year shall be the financial year from April to March. 9.7 The Appellate Tribunal for Electricity in its Judgment dated 1 August, 2014 in Appeal No. 59 of 2013 and 116 of 2013 has also observed that Banking of wind energy is an essential feature for the commercial viability of a wind Generator. 9.8 All the contentions raised by MSEDCL in its reply have been dealt with and adjudicated upon, by the Commission in its Order dated 15 January, 2018 in Case No. 137 of The Petitioner s Case is identical to the Case No. 137 of MERC Order in Case No. 173 of 2017 Page 11 of 17

12 Issue of non adjustment of MTOA units in consumer bill for FY : 9.9 Superintending Engineers of MSEDCL are not providing the correct adjustment in the bills of the respective Open Access consumers even after a specific direction from the Chief Engineer (Commercial) of the MSEDCL head Office MSEDCL has been verbally informing the consumers that bills are revised and credit adjustments are given. Commission s Analysis and Ruling: 10. The Commission s analysis, findings and directions on the issues raised in this Petition are set out below. Issue I: Rejection/Partial approval of Short Term Open Access (STOA) Applications for FY ; Issue II Non adjustment of banking units till December 2016 in the bills of January, February and March, 2017; Issue III: Non Adjustment of Medium Term Open Access (MTOA) units in FY Issue I: Rejection/Partial approval of Short Term Open Access (STOA) Applications for FY ; 11.1 SIIPL is a Wind Power Generator and is supplying power under STOA/MTOA to several consumers. Open Access Consumers had applied to MSEDCL under STOA for getting wind power from SIIPL. Some are partially approved and some are rejected For FY , MSEDCL started either rejecting STOA applications or reduced the capacity on the ground of technical constraints of the resultant power of Open Access applied for The contentions of MSEDCL are as follows: a. The consumers Metalyst Forging Ltd, SKS Fastener Ltd., Atlast Cast Alloy Ltd., Alicon Cast Alloy Ltd. and Mahindra Sanyo Special Steel Pvt. Ltd. of SIIPL applied for STOA for the month of May, June, July, August and September 2017 in April b. On , , , , , , , and , MSEDCL vide an informed the MERC Order in Case No. 173 of 2017 Page 12 of 17

13 consumers that the resultant power flow cannot be accommodated in the existing system (CT ratio) of MSEDCL as the resultant power flow was more than the Contract Demand/CT/PT installed at the premises. c. MSEDCL called upon the consumers to submit an Undertaking that in any event they will not exceed the Contract Demand of MSEDCL. The consumers did not submit the Undertaking, and hence STOA was denied for May, However, some consumers submitted unconditional Undertakings for the month of June, July, August, and September, 2017 and accordingly the STOA permissions were granted The Commission in its Order dated 4 May, 2018 in case No. 36 of 2017 has explained in detail the rationale for considering the undertaking. The relevant para. of the Order reads as below: 11.2 Regulation 8.10 of DOA Regulations, 2016 provides that: 8.10 The Nodal Agency shall grant Medium-term or Short-term Open Access if the resultant power flow can be accommodated in the existing Distribution System or the Distribution System under execution. 11.3The Commission has clarified the issue of resultant power flow in its Practice Directions dated 19 October, 2016 as follows: 3. Under Regulation 4.2 of the DOA Regulations, the matter of Contract Demand is to be governed by the provisions of the Electricity Supply Code and the Standards of Performance Regulations, and does not provide for any revision in Contract Demand by the consumer as a condition for grant of Open Access. Hence, an Application for Open Access shall not be rejected on the ground that the consumer has not increased or otherwise revised his Contract Demand, which is entirely at his option. However, the Regulations also provide that the Distribution Licensee verify the availability of necessary infrastructure and capacity of the distribution system, and grant Medium or Short-Term Open Access only if the resultant power flow can be accommodated in the existing distribution system. If the existing distribution and metering system requires any augmentation or upgradation before Open Access to the extent applied for can be provided, it shall intimate the Applicant accordingly, in writing and in the stipulated time, and follow the procedure specified in the Electricity Supply Code and Standards of Performance Regulations In its subsequent Practice directions dated 8 March, 2017, the Commission clarified further that: MERC Order in Case No. 173 of 2017 Page 13 of 17

14 3. CT/PT augmentation will not be required unless the existing Metering arrangement is inadequate for meeting the stated STOA or MTOA drawal requirement of the Consumer The issue of rejection of Open Access on the ground of system constraints was also raised by a Petitioner in Case No. 76 of In its Daily Order dated 16 May, 2017 the Commission stated that : 6. As regards the prayer of the Petitioner for interim relief, the Commission observed that the issue has wide ramifications and there could be many other similar cases, and that hence it is not inclined to grant ad-interim relief to the Petitioner. However, the Commission directs MSEDCL to have the issues clarified before grant of Open Access to avoid future complications, by way of separate suitable undertaking or otherwise instead of unilaterally deciding the issue at its level In its subsequent Daily Order dated 27 June, 2017 in MA No. 12 of 2017, the Commission recorded as follows: 3. The Commission observed that the Open Access can be granted after considering MSEDCL contract demand and Open Access quantum and allowed upto the technical constraints by taking suitable undertaking The Daily Order dated 27 June, 2017 was challenged by MSEDCL before the Appellate Tribunal in Appeal No. DFR 3883 of The Appellate Tribunal vide its Judgement dated 2 April, 2018, upheld the Commission s Daily Order and disposed of the Appeal In view of the foregoing, the Commission notes that the only issue that needs to be decided is whether application for Open Access by a consumer is to be treated as if Open Access quantum is over and above the Contract Demand or such quantum is subsumed in the Contract Demand. This will have the following implications: a) In the first scenario: Total power quantum = CD with the Licensee + OA Quantum b) In the second scenario: Total power quantum = CD with the Licensee = OA Quantum + balance power requirement from the Licensee against the CD, i. e., while retaining the original Contract Demand with the Licensee (if not reduced by the applicant) the Open Access quantum gets subsumed in the Contract Demand. MERC Order in Case No. 173 of 2017 Page 14 of 17

15 11.9 MSEDCL on its own assumed that the quantum of Open Access applied for by CCIPL would be over and above the Contract Demand which would be met by it. In pursuance of this presumption, MSEDCL reduced the quantum of Open Access citing system constraints Even if it is assumed that this presumption of MSEDCL was correct, it ought to have informed CCIPL that the system needs to be augmented if its applications are to be approved. Instead of this, it unilaterally decided to deny Open Access citing system constraints The DOA Regulations, 2016 provides for such eventuality as follows: 4.3 Completion of Works Where the grant of Open Access is agreed to but requires the completion of works relating to extension or augmentation of lines, transformers, metering arrangements, etc., or the commissioning of new Sub-Stations, the Distribution Licensee shall complete such works within the time limits specified in the Regulations of the Commission governing Standards of Performance In the light of the above, MSEDCL ought not to have reduced or denied the Open Access quantum only on its unilateral presumption that it was sought in addition to the Contract Demand. CCIPL could have then taken a call on its power requirement vis- a- vis the purported infrastructure constraints, and planned its power arrangements accordingly. Had MSEDCL exercised due diligence on this count, it would have come to know that the quantum of Open Access sought was not over and above the Contract Demand but was subsumed within it, as CCIPL has submitted. Hence, the Commission had suggested that an undertaking be taken from CCIPL in this regard Thus, the Distribution Licensee shall grant MTOA or STOA if the resultant power flow can be accommodated in the existing distribution system, and shall intimate the applicant of any upgradation of the distribution system that is required. As a matter of abundant caution, Open Access applicants may be advised to clarify, where necessary, their Open Access power requirement vis-àvis their Contract Demand. The Distribution Licensee may also take an undertaking from applicants in this regard so as to have a better understanding of the effective load requirement. MERC Order in Case No. 173 of 2017 Page 15 of 17

16 11.5 The Commission has explained similar rationale for considering undertaking in its Order dated 4 May, 2018 in Case No. 76 of In view of the forgoing, the Commission vide above two Orders explained the justification and rationale for considering Undertaking from the applicants for better understanding of the effective load requirement. In the present case, MSEDCL has intimated the applicants regarding submission of Undertaking. Accordingly, applicants have submitted the undertaking for the month of June, However, they have not submitted undertaking for the month of May, Considering above, the commission accepts the submission of MSEDCL that the Open Access permissions are granted as per the Undertakings submitted by the consumers. The Commission does not see any reason to exempt the Undertaking for the month of May, 2017 as prayed by the Petitioner. Accordingly issue I is addressed. 12. Issue II Non adjustment of banking units till December 2016 in the bills of January, February and March, 2017; 12.1 SIIPL was supplying power to its Open Access consumers till December, 2016 who did not avail Open Access for January, February and March, 2017 and Requested to adjust the banked energy for these months MSEDCL contended that as SIIPL was not having Open Access consumers after December, 2016 hence all dues to which the banking credits could be adjusted were not available in the ensuing bills of the consumers of SIIPL for the Month of January, February, and March The Commission vide Order dated in Case No. 137 of 2017 held that: 9.9 In view of above provisions, the Commission is of the opinion that it is not mandatory for Open Access Consumer to avail Open Access throughout the financial year without break for availing banking dispensation. Interalia it means that for banking to happen there is no need for consumer to avail Open Access without break in a financial year. Therefore, the contention of the MSEDCL is not tenable In view of the above, the Commission directs MSEDCL to adjust the banked energy of the Petitioners in consumer bills from January, 2017 onwards, if the same consumer has sought Open Access from same Generator. MERC Order in Case No. 173 of 2017 Page 16 of 17

17 12.4 In view of the foregoing, the Commission has already dealt with this issue in its Order in Case No. 137 of 2017 and has noted that it is not mandatory for Open Access Consumer to avail Open Access throughout the financial year without break for availing banking dispensation. However, it is necessary to seek Open Access from the same Generator by the same Consumer. Therefore, it is very clear that there should be an Open Access permission for a particular month within the financial year to adjust the banked energy for a consumer from the same Generator In the present Case, the Commission observes that, the consumers have not availed Open Access during January, 2017 to March, 2017 (till end of financial year), therefore the prayer of Petitioner is not tenable to adjust the banked energy of SIIPL in consumer bills from January, However, it would be entitled for payment of the surplus energy injected in the Grid limited to 10 % as per the provisions of the Regulations. Issue II is addressed accordingly. 13. Issue III: Non Adjustment of MTOA units in FY : 13.1 Initially, SIIL contended that MSEDCL has not adjusted the banked units of its consumers for MTOA in FY , however, during the hearing dated 16 June, 2018 the Advocate of the Petitioner Stated that the issue is resolved now The Commission notes that SIIPL no longer has any grievance in this regard, which was confirmed by SIIPL at the hearing held on 16 June, 2018 and Accordingly issue III is addressed. The Petition of Serum Institute of India Pvt. Ltd. in Case No. 173 of 2017 stands disposed of accordingly. Sd/- (Mukesh Khullar) Member Sd/- (Anand B. Kulkarni) Chairperson MERC Order in Case No. 173 of 2017 Page 17 of 17

Case No. 295 of Coram. Anand B. Kulkarni, Chairperson Mukesh Khullar, Member. Adani Power Maharashtra Limited (APML)

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