3. M. P. Poorv Kshetra Vidyut Vitaran Co. Ltd. - Respondents Shakti Bhawan, Rampur, Jabalpur

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1 Order (Date of Motion Hearing: 30 th May 2017) (Date of Order: 02 nd June 2017) BLA Power Pvt. Ltd. 84, Marker Chambers Nariman Point, Mumbai Petitioner Vs. 1. Energy Department, Government of Madhya Pradesh, Mantralaya, Vallabh Bhawan, Bhopal 2. M. P. Power Management Co. Ltd. Block No. 16, Shakti Bhawan, Rampur, Jabalpur M. P. Poorv Kshetra Vidyut Vitaran Co. Ltd. - Respondents Shakti Bhawan, Rampur, Jabalpur M. P. Madhya Kshetra Vidyut Vitaran Co. Ltd. Nishtha Parisar, Govindpura, Bhopal M. P. Paschim Kshetra Vidyut Vitaran Co. Ltd. GPH Compound, Pologround, Indore. Shri Sanjay Sen, Sr. Advocate, Ms. Shikha Ohri, Advocate, Shri Kapil Gurvani, corepresentative and Shri Manoj Sahu co-representative appeared on behalf of petitioner. M/s. BLA Power Pvt. Ltd. has filed the subject petition for true-up of generation tariff determined for its Unit No. 1 (45 MW) for FY and FY determined vide Commission s order dated 22 nd May In the same petition, the petitioner has also sought Multi-Year Tariff for FY to FY for its aforesaid unit in terms of applicable MPERC (Terms and Conditions for determination of tariff) Regulations. 2. In its subject petition, while referring certain provisions under PPA executed on 5 th January 2011 with Respondent No. 2 (MPPMCL), the petitioner broadly submitted the following: (i) Hon ble MPERC approved the 30% PPA vide its order dated 7 th Sept 2012 for sale of capacity to MPPMCL. Both Respondent No. 1 and Respondent No. 2 have been impleaded as respondents to the present petition. 1

2 (ii) (iii) (iv) (v) Pursuant to the above agreements, the Petitioner installed and commissioned its first unit of 45 MW at Village Niwari in Tehsil Gadawara, in Narsinghpur District of Madhya Pradesh. This first unit (hereinafter referred to as Unit-1) successfully achieved its Commercial Operation Date ( COD ) on 3 rd April Under sub-clause (iii) of clause of the 30% PPA, the Petitioner is required to enter into appropriate arrangements for supply of Fuel for all or part of the capacity of the Unit(s) upon prudent terms and conditions materially consistent with the extant policy of the Government of India, if any. Accordingly, on 25 th April 2011, Petitioner executed a Fuel Supply Agreement ( FSA ) with BLA Industries Pvt. Ltd. ( Fuel Seller ) for supply of the required fuel for power generation. The Petitioner submitted a copy of the said FSA to the Respondent No. 2 on 20 th Sept. 2012, under cover letter dated 17 th Sept In Aug 2014, the Petitioner filed Petition No. 16 of 2014 before Hon ble MPERC, for True-up of provisional tariff order for FY & FY , and approval of provisional tariff for FY and FY in accordance with the provisions of MPERC {Terms and Conditions for Determination of Generation Tariff (Revision- II) Regulations, 2012 (RG-26 (II) of 2012)}(hereinafter referred to as the MPERC Regulations RG-26(II) of 2012 ). The Hon ble MPERC disposed of Petition No. 16 of 2014 by an order dated 22 nd May 2015, determining the generation tariff for supply of Capacity by the petitioner to the Respondent No. 2 under the 30% PPA. On 1 st April 2015, the Fuel Seller issued a notice under clause 10.3 of FSA declaring Force Majeure. According to the Fuel Seller, Western Coalfields Ltd, as a Custodian, had taken over its mine under the Coal Mines (Special Provisions) Act, The Fuel Seller had to comply, albeit under protest. The facts pertaining to same have been detailed in Chapter No. 20 herein below. Subsequently, the Fuel Seller intimated that it has already filed a Writ Petition before the Hon ble Supreme Court inter alia challenging the inclusion of its mine in the Coal Mines (Special Provisions) Act, The Petitioner kept Respondent No. 2 informed about the same and continued to procure fuel under the terms of the FSA (with the Fuel Seller) from Alternate Sources. 2

3 (vi) (vii) (viii) (ix) (x) The Petitioner pursued the Fuel Seller for supply of Fuel under the FSA at the prices under the FSA, however, the Fuel Seller insisted that force majeure was continuing. Under the terms of the FSA, the Petitioner attempted to initiate arbitration proceedings and hence, on 28 th Oct 2015 approached Hon ble Bombay High Court by filing Arbitration Petition No of The Hon ble Bombay High Court through its order dated 30 th Oct 2015 disposed of Arbitration Petition No of A copy of the order dated 30 th October, 2015 is annexed. The parties have accordingly initiated arbitration proceedings, as per order of Hon ble Bombay High Court, before Hon ble Justice V.N. Khare, Former Chief Justice of India. The Hon ble Sole Arbitrator has framed issues and matter is scheduled for final hearing on 21 st and 22 nd April Details of issues framed by the Hon ble Sole Arbitrator are provided in details in Chapter 20 of the format attached to this petition. The Petitioner craves leave to place on record before Hon ble MPERC, a copy of the award that may be passed by the Sole Arbitrator in the arbitration proceedings. As per the order of Hon ble Bombay High Court in the above mentioned proceedings and under its existing FSA with the Fuel Seller, the Petitioner has continued to procure fuel from alternate source upon prudent terms and conditions materially consistent with the extant policy of the Government of India. Therefore, the Petitioner has continued to supply the Contracted Capacity to Respondent No. 2 in compliance of its obligation under the PPAs. In order to reduce the variable charges, the Petitioner tried to source fuel from prudent sources available, and after various discussions and deliberations with Respondent No. 2, through an MoM dated 7 th Nov 2015, Respondent No. 2 provided its no-objection to the use of blended coal i.e. coal blended with petroleum coke for supply of contracted capacity from Unit-1. The Petitioner requested Respondent No. 2 to amend the 30% PPA particularly the definition of Fuel to enable operations with petroleum coke/ coal, being the most cost effective solution, Respondent No. 2 confirmed that it is agreeable to the same 3

4 subject to some conditions, which conditions have been subsequently accepted by the Petitioner. Since this amendment has been mutually and conclusively accepted, the Petitioner awaits Respondent No. 2 to formally amend the PPA. The Petitioner craves leave to place on record the amendment to the PPA as and when the same is executed. (xi) (xii) (xiii) From April 2015, MPPMCL has paid Energy Charges at a lower rate of Rs per kwh, which is not in accordance with the order of Hon ble Commission dated which requires Energy Charges to be paid as per respective regulations. It is pertinent to mention herein that this Hon ble Commission in its order dated had clarified that the base rate of energy needs to be adjusted on month to month basis with respect to fuel price and GCV of fuel. It was also stated that the actual billing of Energy Charges shall be as per formulae provided in respective regulations. It is most respectfully submitted that Regulation 41 of the MPERC Regulations RG-26(II) of 2012 read with Section 61 and 62 of the Electricity Act, 2003 permit recovery of actual fuel cost incurred by the generating company. Thus, the petitioner in the present petition is also requesting for issuance of necessary directives to MPPMCL to make payment as per the Electricity Act, 2003 and the relevant provisions of the applicable regulations. Further, in accordance with the applicable regulations, elaborated in subsequent section namely Legal Provisions in this petition, the Company is required to file its petition for True up of Tariff order dated 22 nd May 2015 for FY and and Multi Year tariff for FY , FY & FY Accordingly, the same are being submitted in this petition in the subsequent para. The Petitioner humbly states that the present petition has been delayed on account of various issues such as pendency of the arbitration proceedings and the finalization to the proposed amendment to the PPA between the Petitioner and Respondent No. 2 and other exigencies. It is most respectfully submitted that the present petition has been filed for the true-up of tariff for FY and and the determination of tariff for MYT period for FY to FY The present petition is bonafide and the petitioner, in the interest and sustenance of the Petitioner company, 4

5 craves indulgence of this Hon ble Commission and seeks condonation of inadvertent delay in filing the present petition. 3. With the above contention, the petitioner has submitted its claim for true-up of its generation tariff and Multi Year Tariff for FY to FY M/s BLA Power Pvt. Ltd., Mumbai has filed the subject petition with the following prayer: (a) Approve proposed tariff for FY , FY & FY based on regulations. (b) (c) (d) (e) Approve true-up of Capacity Charge or Fixed Charge based on actual project cost in terms provisionally approved in the tariff order dated 22 nd May 2015, for FY and Direct that Variable Charge or Energy Charge or Variable Cost shall be payable to the Petitioner in terms of MPERC Regulations RG-26 (II) of 2012 and MPERC Regulations RG-26 (III) of Approve the Additional Capital Expenditure of Rs Cr for installation of VFDs in FY & Rs Cr for installation of CAAQMS in FY , incurred by BLA Power Pvt. Ltd. after CoD. The funding for them was done from internal sources, thus proposed on normative basis with 30% ceiling on equity and balance be treated as normative loan, as elaborated in para 17, 18 & 19 above. To consider the efficiency factor of Generator for computation of Heat rate and permit heat rate of 2835 k Cal/kWh as against 2792 K Cal/kWh, as elaborated in para 21 above consequently allow true-up of Energy Charges for FY and FY and based on the heat rate of 2835 k Cal/kWh. 4. In its MYT proposal at para 19 (Page 71) of the petition, the petitioner has sought energy charges as per Fuel Supply Agreement (FSA) dated 25 th April 2011 on actual receipt basis and revised heat rate. 5. In Para 20 of the petition, the petitioner has submitted Arrangement for supply of fuel. While mentioning certain clauses under PPA and FSA, the petitioner has broadly 5

6 submitted the following: (i) Under sub-clause (iii) of clause of the 30% PPA, the Petitioner is required to "enter into appropriate arrangements for supply of Fuel for all or part of the capacity of the Unit(S) upon prudent terms and conditions materially consistent with the extant policy of the Government of India, if any. Accordingly, on 25th April 2011, Petitioner executed a Fuel Supply Agreement [FSA] with B L A Industries Pvt. Ltd. [Fuel Seller] for supply of the required fuel for power generation. The Petitioner submitted a copy of the said FSA to the Respondent No.2 on 20 th Sept 2012, under cover letter dated 17th Sept (ii) (iii) (iv) On 1st April 2015, the Fuel Seller issued notice under clause 10.3 of FSA declaring Force Majeure. Subsequently, through status updates at regular intervals it was indicated by the Fuel Seller that the force majeure conditions were likely to prevail until upto It is submitted that while the Fuel Seller has challenged the takeover of it s mine and the matter is sub-judice, the Petitioner with the consent of the Respondent No. 2 was compelled to make alternative arrangement so as to ensure continuous availability and operation of the Power Plant. Further, as per FSA, copy of which has been available with Respondent No.2, during subsistence of a Force Majeure condition, three options were available to the Petitioner. First, the Fuel Seller can supply fuel to the Petitioner from Alternate Sources. Second, the Fuel Seller can cause to supply fuel to the Petitioner. Third, the Petitioner as the purchaser of fuel, can also procure fuel directly. In any of these three scenarios, in terms of clause 3.3 of the FSA, supply/ procurement of fuel during the subsistence of force majeure condition, remains fuel supplied under the FSA. Thus, supply of fuel from such alternate source, in terms of Clause 3.3 of the FSA, during the subsistence of the Force Majeure conditions, constitutes fuel supplied under the FSA. Since the Fuel Seller is unable to supply the monthly Fuel requirement on account of force majeure conditions, use of Fuel from 6

7 alternate source was necessary to continue generation and fulfilment of obligations of the Petitioner under the PPAs with MPPMCL. The Petitioner kept Respondent No. 2 informed about the same and continued to procure fuel under the terms of the FSA (with the Fuel Seller), from Alternate Sources. (v) (vi) (vii) (viii) (ix) The Petitioner pursued the Fuel Seller for supply of Fuel under the FSA at the prices under the FSA, however, the Fuel Seller insisted that force majeure was continuing. Under the terms of the FSA, the Petitioner attempted to initiate arbitration proceedings and hence, on 28th Oct 2015 approached Hon ble Bombay High Court by filing Arbitration Petition No of In the meanwhile, in view of the force majeure conditions under the FSA, the Petitioner filed a Petition being No. 36 of 2015 before this Hon ble Commission seeking, inter alia, directions for payment of actual Energy Charges by Respondent No. 2. In view of the aforesaid observation of this Hon ble Commission, the Petitioner and MPPMCL mutually decided to hold a meeting on to resolve the issues regarding variable charges of the contracted energy from Unit-1 after handing over of the Fuel Seller s Mines to the custodian from mid night of The meeting, however, ended without reaching any consensus and MPPMCL is not paying variable charges in terms of the MPERC Tariff Regulations and is instead paying reduced variable charge of Rs per kwh for the time being. It is pertinent to clarify herein that MPPMCL has been scheduling power, in accordance with the MOD, while taking into account the actual Variable charges billed by the Petitioner. However, MPPMCL is paying variable charge at a reduced rate of Rs per kwh to the Petitioner. In the meanwhile, the Petitioner with an view to reduce variable charges, requested MPPMCL to permit the use of blended coal, i.e. a blend of domestic coal and petroleum coke, in terms of the provisions of the PPA 7

8 dated For this purpose, the Petitioner by a letter dated requested MPPMCL to allow the use of such blended coal, in conformity with the terms of the PPA and as a cost-effective solution. (x) MPPMCL, after considering the aforesaid request of the Petitioner, held a meeting with the Petitioner on to decide the issue regarding use of blended coal, i.e. a blend of domestic coal and petroleum coke, for supply of contracted capacity from Unit-1. The relevant portion of the MoM is reproduced below: The representative of M/s BLA Power Pvt. Ltd. also stated that they have installed CFBC boiler in their plant which can use many types of solid fuels apart from coal. They are trying hard for reducing the variable cost in order to have the power scheduled as per MOD. They will be using the cheapest source of solid fuel or its combination thereof. Therefore, they would be blending coal with Petroleum coke for generation of electricity from their plant. MPPMCL stated that procurement of fuel and assessing its suitability in the boiler is the responsibility of the generator. At the current price of Petroleum coke, its blending with coal may reduce the variable cost. As long as blending of coal with other solid fuel helps in reducing the variable cost, it would be to the advantage of MPPMCL and end consumers of the State. MPPMCL, as always, shall schedule power based only on Merit Order Dispatch and in principle, has no objection regarding type of fuel used by the generator, subject to approval from competent authority in accordance with law. The meeting thus ended with the agreement that M/s BLA Power Pvt. Ltd. may take up the matter with Hon ble MPERC for getting approval on the subject. (Emphasis Supplied) 8

9 (xi) (xii) (xiii) (xiv) After obtaining the in-principle approval of MPPMCL for the use of blended coal, i.e. a blend of domestic coal and petroleum coke in the Generating Station, the Petitioner executed a Memorandum of Understanding (MoU) on with Bharat Petroleum Corporation Ltd. for purchase of 10,000 metric tonnes per month of Petroleum coke. Furthermore, on , the Petitioner has executed an agreement with IOCL for purchase of 3400 tons per month of Petroleum Coke. The Petitioner, with a view to further reduce variable charges, requested MPPMCL by a letter dated , to execute an amendment to PPA particularly the definition of Fuel. Vide the above referred letter, the Petitioner requested MPPMCL to include petroleum coke and other fuels which can be used in a CFBC Boiler in the definition of Fuel. This request for execution of the amended PPA was again reiterated by the Petitioner vide its letter dated In the meanwhile, MPPMCL by its letter dated informed the Petitioner that the definition of fuel in the PPA will be amended subject to the Petitioner agreeing to certain conditions. The Petitioner has conveyed its consent to the conditions imposed by Respondent No. 2 for amending the PPA. The parties (Petitioner and Respondent No. 2) are now in the process of executing an amendment to the PPA. Apart from the aforesaid, Government of India announced a new policy sometime in July-August 2016 of auctioning linkage for 5 years. The Petitioner participated in this process and through competitive bidding secured the following linkages from the coal mines of WCL, SECL and NCL and has already executed FSAs with them: Name of the mine Date of FSA Quantum Gondegaon (WCL) MT Wani (WCL) MT New Kusmunda (SECL) MT Dudichua Wharfwall (NCL) MT 9

10 (xv) In view of the aforesaid factual background the Petitioner most humbly submits that it has been making earnest efforts to resolve all issues relating to the FSA and has been operating the plant despite the under recovery of Energy Charges from MPPMCL. The Petitioner has been consistently following up the issue with MPPMCL also. 6. During the course of motion hearing held on 30 th May 2017 in the subject matter, Learned Counsel on behalf of the petitioner reiterated the contention in the subject petition seeking true-up of the Commission s order dated 22 nd May 2015 and Multi-Year Tariff for FY to FY Learned Counsel stated about the details of additional capitalization and relaxation in operating norms as sought and claimed in the petition. With regard to the Multi Year Tariff sought in the petition, Learned Counsel submitted that this Commission has already taken a view in past on the issues related to coal in this matter however, certain developments have taken place for arrangement for supply of fuel by the petitioner which are detailed in Para 20 at Page 72 of subject petition. He mentioned about the status of fuel supply arrangements alongwith a short detail on the matter of arbitration between the petitioner and Coal Company as mentioned in the subject petition. He placed a copy of award dated in the matter of arbitration between M/s BLA Power Ltd. and BLA Industries Pvt. Ltd. He emphasized that the Fuel Supply Agreement between M/s. BLA Power and M/s. BLA Industries is subsisting and the coal is supplied to the petitioner from Alternate Source by BLA Industries in terms of Clause 3.3 of FSA. 7. On perusal of the contents in the petition, the following is observed: (i) With regard to true-up of tariff for any year, Regulation 8.6 of MPERC (Terms and Conditions for determination of Generation Tariff) Regulations, 2012 provides that the true-up should be filed by 15 th November every year or within 30 days of notification of concerned Regulations, which ever is later. Accordingly, the petition for true-up of FY should have been filed by November 2015 whereas, it is now filed on 19 th April (ii) The petitioner has filed the true-up petition after a period of two years from the date of last tariff order dated 22 nd May 2015 in Petition No. 16 of

11 (iii) There is no specific application with the subject petition seeking condonation of such a long delay in filing this petition. However, the reasons stated for delay in Para 16 are not to the satisfaction of Commission. (iv) (v) The petitioner has sought Multi-Year Tariff for FY to FY in the same petition. In para 9.91 of the Commission s last tariff order dated 22 nd May 2015 in the subject matter, the following has been mentioned: For the next financial year i.e, FY , the energy charges for FY are considered for FY also for the purpose of working capital considered in the Annual Fixed cost for this financial year. The coal block of M/s. BLA Industries who is having Fuel Supply Agreement with the petitioner has been cancelled w.e.f. 31 st March 2015 vide order passed on 24 th September 2014 by the Hon ble Supreme Court of India in Writ Petition (CRL) No. 120 of The Commission is determining the tariff pursuant to a long term Power Purchase Agreement entered into by both the parties in PPA and the subject petition also. The aforesaid long term PPA is linked with the long term FSA between the generating company and the coal company (M/s BLA Industries) with reference to the coal mines which are presently out of the scene in the subject petition, PPA and FSA. The Energy (Variable) charges considered in this order of the Commission are based on the variable parameters of coal supplied from the coal mine under FSA which has now been cancelled as per aforesaid Order of the Apex court. Further, the Annual Fixed Cost determined in this order is also having a component which is based on the coal under the provisions of long term FSA. Therefore, the tariff determined in this order is applicable till the coal under the FSA executed between the petitioner and the coal company (M/s BLA Industries) is used for generation and supply of electricity to Respondents in this matter. The petitioner may approach the Commission in terms of relevant provisions under PPA,as and when there is any change in the present status of coal linkage for its power plant. (Emphasis Supplied) 11

12 (vi) (vii) Availing the opportunity provided to the petitioner in aforesaid Para 9.91 of Commission s order, the petitioner had approached the Commission in Petition No. 36 of Vide Commission s order dated 25 th July 2015 in abovementioned Petition No. 36 of 2015, the observations of Commission are as under: (a) It is mentioned in the petition that post cancellation of the Gotitoria Coal mines by Hon ble Apex court, the basic Fuel Supply Agreement with M/s BLA Industries, based on which the PPA was executed and the tariff has been determined by the Commission, has become impossible to perform or infructuous. (b) (c) (d) (e) It is further mentioned in the petition that the petitioner is able to generate electricity from the coal procured by it through some short term arrangements i.e, via E-Auction and through coal traders. The petitioner is not eligible for coal linkage from CIL as per the coal linkage policy for the 12 th Plan Power projects. The Energy (Variable) charges are translated to ` per kwh from generation of electricity from above mentioned short term arrangements whereas, the energy charges of ` 2.18 per kwh were determined by the Commission for FY for generation of electricity from coal supplied from Gotitoria mines under FSA. The petitioner is not having any Fuel Supply Agreement as on date for its power plant however, it was submitted that the petitioner is intending to execute a Fuel Supply Agreement to fulfill its obligation under Article (iii) of Power Purchase Agreement which provides that, The Company shall enter into appropriate arrangements for supply of Fuel for all or part of the capacity of the Unit(s) upon prudent terms and conditions materially consistent with 12

13 the extant policy of the Government of India, if any. The Company shall provide a copy of the duly executed Fuel Supply Agreement to the Procurer (emphasis supplied); (f) In terms of the aforesaid Article under PPA, the petitioner is required to submit a duly executed Fuel Supply Agreement upon prudent terms and conditions materially consistent with the extant policy of the Government of India, to the procurer. The compliance of the aforesaid condition is not observed in the instant petition. In PPA, there is no mention of any short term arrangement of coal without any FSA. (viii) With the above observations, the decision of Commission on the part of petition approaching this Commission under Para 9.91 of Commission s order dated (in Petition No. 16 of 2014) is mentioned in Para 7(viii) of the aforesaid order and the same is reproduced below: As mentioned above by the Commission, such type of short term arrangement as mentioned by the petitioner may not be considered as change in the present status of coal linkage for its power plant. There is no change in the status of coal linkage through a duly executed Fuel Supply Agreement which is required to be submitted by the petitioner to the respondent under its obligation in Article (iii) of PPA. Therefore, the approach of the petitioner on the issue of short term arrangement of coal in the subject petition is not considered in accordance with the directions under Para 9.91 of the Commission s order dated 22 nd May 2015 in Petition No.16 of (Emphasis supplied) (ix) (x) With some other observations regarding certain disputes raised in the same petition, the aforesaid petition was not found maintainable and disposed of by the Commission. Therefore, the argument of petitioner that the Commission has not decided Petition No. 36 of 2015 is misplaced and has no merit. With regard to the issues in contention of Learned Counsel of the petitioner on the last two sentences in Para 9.91 of Commission s tariff order dated 22 nd May 13

14 2015 (in Petition No. 16 of 2014), it is noted that the petitioner had neither sought any clarification nor raised any issue on aforesaid Para 9.91 of Commission s order (dated 22 nd May 2015) till date however, it is made clear in this order that the tariff determined in Commission s aforesaid order was basically applicable upto However, the purpose and intent for using the words till the coal under the FSA executed between the petitioner and the coal company (M/s. BLA Industries) is used for generation and supply of electricity to Respondents in this matter was only to consider the balance normative stock of coal from Gotitoria Coal Mines in the FSA with M/s. BLA Industries for generation and supply of electricity to Respondents. The aforementioned normative coal stock was considered as per Regulation 37.1 of MPERC (Terms and Conditions for determination of Generation Tariff) Regulations, As the generation and supply of electricity (by BLA Power to the respondents) from the aforesaid normative coal stock was also considered in aforesaid Para 9.91 of Commission s order dated therefore, the Annual Fixed (Capacity) Charges were determined for FY also for the purpose of billing and payment of Capacity charges and Energy charges by the parties only for the period of normative coal stock. (xi) The petitioner had neither sought any clarification nor raised any issue on Para 9.91 of Commission s order dated 22 nd May Even the petitioner has not filed any review before this Commission or challenged Commission s order dated 25 th July 2015 in Petition No. 36 of 2015 or Commission s order dated 23 rd July 2015 in Petition No. 35 of 2015 before any appropriate forum till date after a period of almost two years of aforementioned Commission s orders. Therefore, any argument of petitioner on its interpretation of Para 9.91 of Commission s order dated at this stage is misleading and devoid of any merit. (xii) It is evident from the submission and documents placed on record in this matter that the petitioner has been procuring itself and using fuel other than the coal from Gotitoria Mines of BLA Industries after (i.e. the date on which the coal mines under FSA took over by Western Coal Fields Ltd. as per judgment dated of Hon ble Supreme Court of India and also under provisions of The Coal Mines (Special Provisions) Second Ordinance, 2014). It is observed that Blended 14

15 Coal is mentioned as primary fuel and Petcoke is mentioned as Alternative fuel in Form No. 2 for MYT at page 127 of the subject petition. It is also mentioned in Para at page 31 of the subject petition that The cost of primary fuel for FY is based on the actual cost incurred by the petitioner for the use of fuel from Alternate Source under the FSA dated 25th April 2011 The cost includes the cost of blended coal. As mentioned in the subject petition, the blended coal is coal blended with petroleum coke. (xiii) It is further observed from the contention in subject petition and the submissions during hearing held on that the amendment in PPA for so called blended coal/ arrangement of fuel supply mentioned in the subject petition has not taken place till date. The issue of coal procured by the petitioner through short term arrangements i.e, via E-Auction and through coal traders has been decided by this Commission in its order dated 25 th July 2015 in petition No. 36 of 2015 filed by the petitioner. Therefore, the discussions about other arrangements for procurement of coal as developments in this matter have no relevance before this Commission at this stage in light of Para 9.91 of Commission s order dated wherein it is mentioned that the petitioner may approach the Commission in terms of relevant provisions under PPA as and when there is any change in the preset status of coal linkage for its power plant. The other arrangements for procurement of coal as mentioned in the subject petition may be dealt with by the Commission at an appropriate stage on compliance with Article 4.1.1(iii) and 3.2 (iii) of PPA entered into by the parties on The details of arbitration between BLA Power and BLA Industries in respect of FSA between them is also not considered at this stage. (xiv) As per Article 4.1.1(iii) of PPA, The Company shall provide a copy of duly executed Fuel Supply Agreement to the Procurer. Secondly, the procurers i.e. MPPMCL including other respondents are required to approach the Commission seeking approval for PPA or any amendment in the PPA in terms of Article 3.2 (iii) of PPA. 8. In view of all above mentioned facts and observations, the proposal of Multi Year Tariff for FY to FY in the subject petition is not considerable until and unless it is filed after obtaining approval of this Commission on any so called amendment in the PPA. As mentioned in preceding paragraph, the proposal seeking 15

16 approval of any amendment in PPA by this Commission has to be in compliance with the provisions articulated in PPA itself which was executed between the parties in this matter and approved by the Commission. Therefore, the subject petition is not maintainable in the present form. The petitioner is directed to file a fresh petition for true-up of its tariff determined vide Commission s order dated in Petition No. 16 of The petitioner shall be at liberty for adjustment/refund of fee deposited with this petition. With the aforesaid directions, the subject petition is disposed of. (Alok Gupta) (A.B.Bajpai) (Dr. Dev Raj Birdi) Member Member Chairman 16