Bihar Electricity Regulatory Commission Vidyut Bhawan-II, J.L. Nehru Marg, Patna 800 021 In the matter of: Case No.:- 27/2016 Signing of fresh PPA on reduced Tariff for 5 MW Solar Power Plant of M/s Sri Avantika Contractors (I) Limited by BSPHCL. And In the matter of: M/s Sri Awantika Contractors (I) Ltd....Petitioner Vs. 1. Bihar State Power (Holding) Com. Ltd. Vidyut Bhawan, J.L. Nehru Marg, Patna- Respondents 2. North Bihar Power Distribution Com. Ltd. Vidyut Bhawan, J.L. Nehru Marg, Patna-21 Quorum: 1. S. K. Negi - Chairman 2. Rajeev Amit - Member 3. R.K. Choudhary - Member Appearance : 1 Shri Ajay Kumar Singh, Accounts Officer 2 Shri Vijay Varma, Advisor Shri Naveen Kumar Upadhyay, Project 3 Engneer. Shri Sanjay Bhartiya, Chairman, Energy 4 Sub-committe. 5 Shri Amit Kumar, AEE (Inter-State) 6 Shri Manish Shakya, AEE (inter-state) 7 Shri Rakesh ESE, Shir Jayant Kumar Dubey, EEE (Interstate) 8 9 10 Shri Pranav Kumar, Electrical Executive Engineer, (Com.) Shri Narendra Kumar, Chief Engineer (Com.) On behalf of M/s Sri Avantika Contractors (I) Ltd. On behalf of Bihar Industries Association (BIA) On behalf of Bihar State Power (Holding) Co. Ltd. (BSPHCL) On behalf of North Bihar Power Distribution Company Ltd, (NBPDCL) On behalf of South Bihar Power Distribution Company Ltd, (SBPDCL)
Date of hearing 12.08.2016, 19.08.2016 & 23.08.2016 Date-07.09.2016 Order 1. M/s Sri Avantika Contractors (I) Ltd has filed a petition against the order of Bihar State Power Holding Company Ltd communicated vide CE (System Operation) letter no 27/misc/Tr. O&M/115/2013-135 dated 24.05.2016 directing them to sign fresh/amended draft PPA for the 5 MW Solar PV Plant at Rampurva, Champaran on the BERC tariff rate determined in case no 4, 7, 8, 9, &15 of 2015 passed on 06.05.2015. 2. Petitioner's Submission:- 2.1 Petitioner Sri Avantika Contractors (1) Limited has submitted that they have signed a Power Purchase Agreement with Bihar State Power holding Company Limited on 01.03.2013 to set up a 5 MW Solar PV Power Plant at Village Rampurwa, Block Gaunaha, District, Champaran to supply 8.322 MU per annum to the Respondent BSPHCL from the date of Commissioning of the Plant at the rate determined by the Commission in its Order No. 12/2012 dated 29 th May, 2012. 2.2 5 MW Solar PV Project was commissioned and synchronized at 33 KV with North Bihar Power Distribution Company Ltd 33/11 Power sub Station, Gaunaha, Champaran on 31.01.2016 in presence of joint committee of officials from BSPHCL and the distribution company NBPDCL. Further Electrical Superintending Engineer, Motihari communicated this to Chief Engineer (O&M), NBPDCL vide his letter no 266 dated 02.02.2016 with a copy to Chief Engineer (Commercial), NBPDCL. 2.3 Petitioner has also submitted that Department of Industries (Technical Development), Government of Bihar deputed a team of officials to inspect the site and has confirmed the date of Operation of Plant (COD) as 31.01.2016 vide letter no 4 tech/ utpadan tithi/05/2016/506 dated 04.03.2016. 2.4 Petitioner has further submitted that as per para 15 of BERC order dated 09.04.2015 in case no 22/2014 the tariff has been for the Projects for which PPA was to be signed up to 31.03.2015 and the project was to be
commissioned before 31.03.2016. However, the financial year 2014-15 is already over and process of fresh determination of tariff for 2015-16 may take some time. Therefore, this tariff shall be valid till a new tariff order for the year 2015-16 is issued by the Commission. 2.5 Petitioner has also submitted that as per para-9 (a) of BERC order dated 09.04.2015 "The control period is for three years as per provisions of the BERC (Terms & Conditions for determination of Tariff form Solar Energy Sources) Regulation, 2010 i.e. for the period from FY 2013-14 to FY 2015-16". Thus the control period has been clearly defined in this BERC Order in the light of its Regulation 2010 & this order has not been discussed or modified in BERC order dated 29.02.2016. 2.6 Petitioner has further submitted that in view of above facts, the prevailing tariff rate at the time of commissioning of the 5 MW Solar Plant as contained in the BERC order dated 09.04.2015 is applicable which is Rs. 7.69 per unit. There is no need to sign fresh PPA as we have already signed PPA and applicability of prevailing tariff is already defined in Para 13 & 15 of BERC Suo- Moto proceeding no 22/2014 dated 09.04.2015. 2.7 Petitioner has also submitted that they approached CMD, Bihar State Power Holding Company Ltd vide letter no SACI/Solar/ CMD/123/2016-17 dated 28.06.2016 to allow them tariff rate of Rs. 7.69 as per BERC order dated 09.04.2015. But, they were asked by BSPHCL to sign fresh PPA on reduced tariff rate of Rs. 7.02 which is contrary to the order passed in BERC order dated 06.05.2015 under clause 9 which says "If a petitioner/developer is not able to commission the plant within the control period, they are entitled to the generic tariff for the project as determined by the Commission during the subsequent control period as applicable on their COD". 2.8 Finally, the petitioner has requested Commission to direct Bihar State Power Holding Company Ltd to allow them a tariff rate of Rs. 7.69 per unit for supply of power from their 5 MW Solar Generating Plant which has been commissioned on 31.01.2016. 3. Reply of Respondent BSPHCL dated 19.08.2016:- 1. BSPHCL has submitted that erstwhile BSEB [now BSP (H)CL] had executed PPA on 01.03.2013 with M/s Sri Avantika Contractors (I)
Limited for supply of power from 5 MW Solar PV Project based on the recommendation of the Energy Department, Government of Bihar. Commission s order dated 29.02.2016 passed in Case no. 31/2015 under clause 1 para marked "X" dated 11.03.2016 is contrary to the order of the Commission passed vide order dated 06.05.2015 in case no 4,7,8,9 & 15 of 2015. 2. It is further mentioned that Commission's order under Clause 9 of the Case no. 4,7,8,9 & 15 of 2015 & clause 2 of the Corrigendum issued dated 11.03.2016 against Case No. SMP 31/2015 are as follow :- Clause 9:- "if a petitioner/developer is not able to commission the plant within the control period, they are entitled to the generic tariff for the project as determined by the Commission during the subsequent control period as applicable on their COD". Clause 2:- "The generic levellised tariff determined on the basis of above parameters for Solar PV power projects including roof top solar PV shall be applicable for such projects which are commissioned upto 31.03.2017 and for which PPA is signed upto 31.03.2016. However till such time new tariff is determined, tariff determined in this order shall remain applicable for the projects for which the PPA is signed before issuance of new tariff order and the projects is commissioned within one year from the date of signing of PPA. 3. BSPHCL has also mentioned that the cost of the Solar PV module is decreasing across the country. There is a reduction in benchmark capital cost of Solar PV projects in last successive years notified by CERC & BERC, the benefit of the reduction in capital cost of the project due to delay in procurement and commissioning of the project should be passed on to the end consumers. 4. In accordance with the provision of section 61 (a) read with section 61 (d) of the Electricity Act, 2003, Commission has to determine the tariff safeguarding interest of the consumer and also to recover the cost of electricity in a reasonable manner. CERC/BERC approved tariff for FY 2014-15, 2015-16 & 2016-17 are compared as below:
Financial Tariff approved by CERC Tariff approved by BERC Year With AD Without AD With AD Without AD 2014-15 6.95 7.72 6.93 7.69 2015-16 6.35 7.04 6.33 7.02 2016-17 5.09 5.67 5.09 5.68 (Proposed) (Proposed) It is evident from the above that BERC has taken similar tariff as approved by the CERC for the above mentioned financial year 2014-15 to 2016-17. 5. Respondent has further submitted that BSP(H)CL requested BERC for determination of tariff for Solar PV project for FY 2015-16 as this was required by BSP(H)CL for initiating competitive bidding process for implementation of the 100 MW Solar PV project in Bihar. The benchmark tariff was required to invite bids based on reverse bidding. Therefore, Commission extended the tariff of FY 2014-15 till tariff for FY 2015-16 are determined by the Commission. As such the main spirit behind was to get lower tariff for implementation of the 100 MW Solar PV project. Hence, Generic tariff as applicable tariff on revised COD appears to be acceptable in the instant matter. As such the tariff for FY 2014-15 claimed by petitioner is irrelevant and unacceptable to BSP(H)CL. 6. The Respondent has further mentioned that the Power Purchase Agreement (PPA) executed with the Petitioner has become infructuous as the Petitioner has not complied the original COD (i.e 31.03.2015) based on the direction given by the Commission vide order dated 29.05.2012 in Petition No 12/2012. 7. BSPHCL has also submitted that the capital cost of the Solar PV project is reducing each year resulting substantial decrease in the Solar PV tariff. In this regard, tariff for the Solar PV determined by CERC (without accelerated depreciation) for the period 2012-13 to 2016-17 have been detailed as below: Tariff Period Tariff Approved Capital cost approved Rs./Kwh Rs. Crores/MW 2012-13 10.39 10 2013-14 8.75 8.0
2014-15 7.72 6.91 2015-16 7.04 6.058 2016-17 5.68 5.30 8. Respondent BSPHCL has submitted that signing of PPA with M/s Sri Avantika Contractors (I) Limited at the tariff of FY 2014-15 ie. Rs. 7.69/Kwh be rejected otherwise it will have serious audit implication for NBPDCL & SBPDCL and it is also contrary to the BERC order dated 06.05.2015 in case no. 4,7,8,9 &15/2015" as at the time of signing of the fresh PPA, the applicable tariff is the tariff determined for FY 2015-16 @ Rs. 7.02/kwh. Finally, respondent BSPHCL has prayed that:- (a) The petitioner should not be allowed tariff for FY 2014-15 (i.e) Rs. 7.69 without Accelerated Depreciation (AD) as non-commissioning of the Solar PV project by the petitioner on original Scheduled COD i.e 31.03.2015, the petitioner failed to commission the solar PV project despite extension of the COD period time to time. (b) Non-Commissioning of the Solar PV project in time jeopardised the entire power purchase planning made by the DISCOM owing to non-compliance of Solar Power Obligation (SPO). (c) The petitioner,therefore, not be compensated with the higher tariff i.e. Rs. 7.69/kwh for its inefficiencies. 4. Rejoinder dated 23.08.2016 by SriAvantika Contractors(I) Ltd:- 1. M/s Sri Avantika Contractors(I) Ltd, in their rejoinder, has submitted that BSPHCL, in their reply, has not appreciated that applicable tariff is guided by the provisions made in the PPA and BERC Regulations and prevailing benchmark capital cost at the time of determination of tariff. 2. In para 9 of the reply, BSPHCL has stated that the PPA executed has become infructuous. Petitioner in their rejoinder has submitted that neither BSPHCL nor Developer has given any notice whatsoever under the provision of the PPA.
Solar PV power plant has been commissioned as per PPA in presence of both the parties on 31.01.2016.BSPHCL has made such argument without any substance in the matter. 5. Hearings: Matter was heard on 12.08.2016 wherein representative of BSP(H)CL submitted that the matter is being examined and sought ten days time to file comments/objections as requested by CE (System Operation) BSP(H)CL vide letter no. 212 dated 11.08.2016. The Commission allowed their prayer with a direction to file reply by 19.08.2016. Matter was heard again on 19.08.2016. No reply was submitted. Commission directed the secretariat to issue notice to the Respondent BSPHCL to file reply and to be present during hearing on 23.08.2016 without fail. Commission heard the matter on 23.08.2016. BSPHCL filed a reply vide its letter no. 216 dated 19.08.2016. A copy of the reply was served to the petitioner. Petitioner also filed a rejoinder on the reply filed by the respondent BSPHCL. Representative of the petitioner has submitted that the reply filed by the respondent is not maintainable. Order was reserved. 6. Commission s views and Findings: Having heard the arguments of both parties, examined the submissions of the petitioner, reply of the respondent BSPHCL and rejoinder submitted by the petitioner the Commission observes the following:- 1. Petitioner M/s Sri Avantika Contractors (1) Limited signed a Power Purchase Agreement with Bihar State Power holding Company Limited on 01.03.2013 to set up a 5 MW Solar PV Power Plant at Village Rampurwa, Block Gaunaha, District, Champaran to supply 8.322 MU per annum to the Respondent BSPHCL from the date of Commissioning of the Plant at the rate of Rs10.90 per unit determined by the Commission in its Order No 12/2012 dated 29 th May, 2012. Subject to fulfilment of para 20 of the said order of the Commission. In para 20 of the order, Commission has specified that the generic levellised tariff determined for solar PV projects shall be applicable for such projects which are commissioned upto 31.03.2015 and for which
PPA is signed upto 31.03.2013. But, the Solar PV power plant could not be commissioned in time by the petitioner. 2. Earlier, the petitioner had filed a petition before the Commission in case no.07/2015 dated 06.05.2015 for extension of time period upto 30.06.2015 and for applicability of aforesaid tariff rate of Rs10.90/KWh determined in the order in SMP no.12/2012 dated 29.05.2012. Commission, in its order dated 06.05.2015, rejected the prayer of the petitioner and observed in the concluding para as reproduced below: extension of control period for the project of the petitioner at a levellised tariff of Rs10.90/Kwh will amount to giving undue benefit to the petitioner and abuse of the process of Commission. Therefore, the Commission does not find any justification for extending the control period for the project of the petitioner. Further, The Commission has also mentioned in para 9 of the order that "If a petitioner/developer is not able to commission the plant within the control period, they are entitled to the generic tariff for the project as determined by the Commission during the subsequent control period as applicable on their COD". 3. Petitioner commissioned and synchronized his 5 MW Solar PV Project with 33KV bus of 33KV/11KV Power Sub-Station, Gaunaha, Champaran of NBPDCL on 31.01.2016. There is no dispute over the date of commissioning. 4. In the present case, petitioner has claimed in para7 of the petition that they are entitled for the tariff rate of Rs7.69/KWh as per order of the Commission dated 06.05.2015 in case no.07/2015. 5. Respondent BSPHCL objected over the continuance of a tariff rate of Rs. 7.69 and submitted that the petitioner should be allowed the tariff rate determined by the Commission for FY2015-16 @Rs.7.02/KWh, otherwise it will have serious audit implication for NBPDCL and SBPDCL. 6. As per provisions of the PPA, petitioner s Solar PV Power plant was to be commissioned upto 31.03.2015. However, it could not be commissioned in time and got delayed for 10 months and the time period specified for
applicability of tariff @ Rs 10.90 per KWh in suo- motu proceedings no.12/2012 dated 29.05.2012 has lapsed. 7. Commission clarifies that control period as defined in the BERC(Terms and Conditions for Solar Energy Sources)Regulations,2010 is the period during which the norms for determination of tariff specified in this regulations shall remain valid. 8. The submission of BSPHCL in their reply vide letter no.216 dated 19.08.2016 that the Commission extended the tariff of FY 2014-15 till the tariff for FY 2015-16 is determined by the Commission consequent upon their request for determination of tariff for FY 2015-16 which was required to be kept benchmark tariff for initiating competitive bidding process for 100 MW Solar PV projects is not maintainable as the available records indicate that in the RfP issued by BSPHCL for competitive bidding for 100 MW of solar PV power, the benchmark tariff of Rs 8.75/kwh determined by the Commission in its order in suo-motu proceedings no.09/2013 dated14.06.2013 was considered for reverse bidding. 9. The Commission determined the generic levellised tariff @Rs.7.69 per unit (without accelerated depreciation) in its order in case no SMP- 22/2014 dated 09.04.2015 for the solar PV Projects for which PPA was to be signed upto 31.03.2015 and the project was to be commissioned by 31.03.2016. The commission has already clarified in para 15 of the order which is reproduced below :- However, the financial year 2014-15 is already over and process of fresh determination of tariff for 2015-16 may take some time. Therefore, this tariff shall be valid till a new tariff order for the year 2015-16 is issued by the Commission. This tariff will also be applicable to projects for which PPA is signed after 31.03.2015 and before the issue of the next tariff order and the project is commissioned within one year from signing of the PPA". 10. Commission determined the generic levellised tariff for solar PV projects for FY2015-16 @ Rs.7.02 per unit (without accelerated depreciation) in its order in suo-motu proceedings no.31/2015 dated 29.02.2016.
11. The above order was issued by the Commission on 29.02.2016 and it was made effective from date of the issuance of the order. Therefore, the order can't be implemented with retrospective effect. Undoubtedly, the applicable tariff rate prior to 29.02.2016 was @ 7.69 per unit (without decelerated depreciation). 12. As 5 MW Solar PV power plant of the petitioner at Rampurwa, Champaran was commissioned on 31.01.2016 and the tariff rate for solar PV projects applicable as on COD i.e 31.01.2016 was @ Rs. 7.69 per unit (without accelerated depreciation) as determined by the Commission in Suo-Motu proceedings no. 22/2014 dated 09.04.2015, the same tariff shall be applicable to the petitioner's project. The PPA may be amended and executed to this extent. With above observations, the petition is hereby disposed off. Sd/- R.K. Choudhary Member Sd/- Rajeev Amit Member Sd/- S. K. Negi Chairman