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Daily News Wrap-Up: APTEL Criticizes MERC for Denying Petitioner Relief

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					</table>The Central Electricity Regulatory Commission (<a href="https://cercind.gov.in/index.html" target="_blank" rel="noopener">CERC</a>) has allowed a renewable energy developer to claim compensation to offset the financial and commercial impact of change in law events on account of an increase in the rates of goods and service tax (GST).
It said the developer is also eligible for carrying costs calculated at the lowest of the actual interest rate, the renewable energy tariff regulations rate, or the late payment surcharge rate in the power purchase agreement (PPA).
Background 
Ostro Energy, a subsidiary of <a href="https://renewpower.in/contact-us/" target="_blank" rel="noopener">ReNew Power Services</a>, develops, operates, and maintains utility-scale grid-connected wind power projects.
The PPA for the 50 MW wind energy project was signed with Solar Energy Corporation of India (<a href="https://www.seci.co.in/" target="_blank" rel="noopener">SECI</a>) on October 25, 2019. The Scheduled Commercial Operation Date was April 18, 2021. The 2021 GST Notification changed rates from October 1, 2021.
The company filed a petition on June 12, 2022, for compensation to mitigate the financial impact of changes in law events due to the GST rate increase from 5% to 12%.
The petitioner requested the respondent to provide compensation, either as a one-time lump sum payment or through tariff increment, for the rise in the GST tax rate.
It also sought interest or carrying costs from the date of incurring the expense until the Commission&#8217;s order.
The respondents in this case are SECI and Uttar Pradesh Power Corporation (<a href="https://uppcl.org/uppcl/hi/" target="_blank" rel="noopener">UPPCL</a>).
Commission Analysis 
The Commission observed that Article 12 of the PPAs specifies that any statutory change in tax structure affecting the wind power project constitutes a change in law.
It acknowledged that the GST rates changed after the scheduled commercial operation date.
Given that the notifications were issued after the petitioner&#8217;s bid submission on April 12, 2019, and considering the principle that change in law compensation should not result in profit, the Commission decided that the discount rate and annuity period would be the appropriate methodology for change in law compensation.
The Commission determined that the respondents’ liability for monthly annuity payment begins from the 60th day from the date of the order or the date of claim submission by the petitioner, whichever is later. In case of delayed monthly annuity payments beyond the 60th day, a late payment surcharge is applicable.
It also ruled that Ostro Energy was eligible for carrying costs at the lowest of the actual interest rate paid or the rate of interest on working capital as per applicable renewable energy tariff regulations or the late payment surcharge rate per the PPA.
Recently, CERC <a href="https://www.mercomindia.com/cerc-upholds-wind-million-bank-guarantee-release" target="_blank" rel="noopener">ruled</a> that the delay in adopting the tariff order by the Uttar Pradesh Power Corporation is a valid reason to claim an extension in the commissioning date for a wind energy project.
Subscribe to Mercom’s real-time <a href="https://mercomindia.com/product/mercoms-renewable-energy-regulatory-updates/" target="_blank" rel="noopener">Regulatory Updates </a>to ensure you don’t miss any critical updates from the renewable industry.

CERC Allows Compensation for Renewable Energy Developer Due to GST Rate Change

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					</table>The Central Electricity Regulatory Commission (<a href="https://cercind.gov.in/index.html" target="_blank" rel="noopener">CERC</a>) has ruled that the delay in adopting the tariff order by the <a href="https://uppcl.org/uppcl/hi/" target="_blank" rel="noopener">Uttar Pradesh Power Corporation</a> is a valid reason to claim an extension in the commissioning date for the generating station.
It also ordered the release of the performance bank guarantee (PBG) of ₹330 million (~$3.9 million) to wind developer <a href="http://www.mytrah.com/" target="_blank" rel="noopener">Mytrah Energy India</a>.
Background 
Mytrah Vayu (Sabarmati), the petitioner, has a 250 MW wind power project in the Thoothukkudi district of Tamil Nadu.
The parent company, Mytrah Energy India, secured a successful bid in response to the October 28, 2016, 1,000 MW wind tender issued by the Solar Energy Corporation of India (<a href="https://www.seci.co.in/" target="_blank" rel="noopener">SECI</a>).
<a href="https://www.ptcindia.com/" target="_blank" rel="noopener">PTC India</a> won the bid for the intermediary trading license on August 26, 2016.
Subsequently, Mytrah Energy established Mytrah Vayu (Sabarmati) as a special-purpose vehicle to implement the project.
Mytrah Vayu executed the power purchase agreement (PPA) on July 21, 2017.
According to the terms of the PPA, the entire 250 MW capacity was initially slated for commissioning by October 4, 2018. However, through its letter dated November 19, 2018, SECI revised the initial scheduled commercial operation date (SCOD) to November 13, 2018.
Subsequently, the petitioner commissioned 128.79 MW in the first Phase on January 29, 2019, 58.32 MW in the second Phase on April 15, 2019, and 62.89 MW in the third Phase on May 10, 2019, out of the contracted 250 MW capacity.
Mytrah contended that the delay in meeting the revised SCOD was attributed to force majeure events.
The company sought a direction against any coercive actions, including the encashment of the PBG.
The petitioner asserted that liquidated damages were not applicable due to the commissioning of the project within the stipulated timeframe and the absence of compensation claims from distribution companies.
It argued that SECI&#8217;s premature invocation of the PBG violated the PPA.
The petitioner contended that the delay in the SCOD extension approval adversely affected the project&#8217;s progress and bankability and led to cost overruns.
SECI contended that the petitioner experienced delays in meeting construction obligations, leading to a delay in achieving the SCOD as per the PPA. It asserted the right to encash the PBG for liquidated damages.
The nodal agency said the bidding documents and the PPA do not include any clause that prevented it from utilizing the PBG for liquidated damages.
Commission’s Analysis 
The Commission had before it the following issues for adjudication:
<ul>
<li>Whether unforeseen events constitute force majeure warranting a six-month extension of the SCOD. Also, if the delay caused by respondents in adopting the tariff justifies relief for the petitioner.</li>
<li>Whether SECI&#8217;s letter dated May 27, 2021, seeking to encash the petitioner&#8217;s PBG, should be set aside, and if SECI should release the guarantee to the petitioner.</li>
</ul>
The Commission noted that the tender did not explicitly require tariff adoption for financial closure. It observed that Uttar Pradesh Power Corporation had delayed the tariff adoption and acknowledged Mytrah&#8217;s achievement of financial closure on September 20, 2017.
The Commission held that SECI&#8217;s delay in adopting the tariff contributed to the petitioner&#8217;s inability to schedule power, and hence, its penalty for project delay was unfair.
Recently, CERC <a href="https://www.mercomindia.com/cerc-approves-fatehgarh-transmission-project" target="_blank" rel="noopener">approved</a> an annual transmission charge of ₹248.67 million (~$2.98 million) as per the final offer by Apraava Energy to acquire Fatehgarh IV Transmission.
Subscribe to Mercom’s real-time <a href="https://mercomindia.com/product/mercoms-renewable-energy-regulatory-updates/" target="_blank" rel="noopener">Regulatory Updates </a>to ensure you don’t miss any critical updates from the renewable industry.

CERC Upholds Wind Developer’s Plea for ₹330 Million Bank Guarantee Release

In one of the toughest moves to enforce the renewable purchase obligation (RPO) order, the <a href="http://www.rerc.rajasthan.gov.in/" target="_blank" rel="noopener noreferrer">Rajasthan Electricity Regulatory Commission</a> (RERC) has said that nine companies will be issued notices for the non-compliance of RPO order.
After reviewing a petition by the Rajasthan Renewable Energy Corporation Limited (<a href="https://www.recgroup.com/en" target="_blank" rel="noopener noreferrer">RRECL</a>), the commission has directed the issue of notices to the managing directors of all the respondent companies (excluding Binani Cement Limited (BCL) and Uttam Strips Limited) to show cause for the non-compliance of the commission’s order.
The RRECL has been asked to provide the list of names of the managing directors and directors of the respondent companies so that notices can be served to them.
Background:
In March 2017, Rajasthan Renewable Energy Corporation Limited (RRECL) filed a petition for the non-compliance of RERC’s order on renewable purchase obligations (RPO).  RRECL is the nodal agency appointed by the RERC for ensuring RPO compliance.
The petition was filed against Binani Cement Limited, Mangalam Cement Ltd, J.K. Tyres &amp; Industries Ltd, Ruchi Soya Industries Ltd, Suzuki Spinners (Unit-II), Suzuki Spinners, Jodhpur Alloys Pvt. Ltd, Shristi Alloys Pvt. Limited, Suzuki Suitings, Uttam Strips Pvt Ltd, and Yantra Steels India Pvt. Ltd.
The case was heard in January 2019, and during the proceedings, it submitted the names of the 11 respondents who had made the compliance and requested the commission to drop the action against them.
On January 4, 2019, the commission allowed the request of the petitioner and dropped the proceeding against the proposed respondents.
In the meantime, two respondents—Binani Cement and Uttam Strips—represented their cases before the commission, stating that they were unable to repay their debts. The two companies said that their board of directors had been suspended as per the provisions of the Insolvency and Bankruptcy Code.
Meanwhile, Ultratech Cement Limited and Jyoti Strips Private Limited became the resolution applicants approved by the National Company Law Tribunal (NCLT) for Binani Cement Limited and Uttam Strips Limited.
Given this, the RERC believes that, now, Binani Cement and Uttam Strips cannot be held responsible for compliance with the commission’s order. However, all the other respondents did not represent their case, which will result in an action initiated against them.
Stating this, the commission has ordered that notices must be issued against the rest of the companies for their non-compliance.
Only last week, Delhi Electricity Regulatory Commission (DERC) <a href="https://mercomindia.com/delhi-penalizes-three-discoms-defaulting-rpo/" target="_blank" rel="noopener noreferrer">imposed penalties</a> of ₹17.2 million (~$240,000) on Tata Power Delhi Distribution Limited (TPDDL) and ₹28.8 million (~$410,000) each on BSES Yamuna Power Ltd. (BYPL) and BSES Rajdhani Power Ltd. (BRPL), for defaulting on renewable energy purchase obligations for three financial years.
In March 2019, <a href="https://mercomindia.com/rajasthan-amends-regulations-rec-and-rpo/" target="_blank" rel="noopener noreferrer">Mercom</a> had reported that the Rajasthan Electricity Regulatory Commission (RERC) issued new amendments to its regulations on renewable energy certificate and renewable purchase obligation compliance framework that was initially passed in 2010.

Rajasthan Regulator to Issue Notices to Companies for Non-Compliance of RPO

<a href="http://www.derc.gov.in/" target="_blank" rel="noopener noreferrer">Delhi Electricity Regulatory Commission</a> (DERC) has imposed penalties of ₹17.2 million (~$240,000) on Tata Power Delhi Distribution Limited (TPDDL) and ₹28.8 million (~$410,000) each on BSES Yamuna Power Ltd. (BYPL) and BSES Rajdhani Power Ltd. (BRPL). The penalties have been imposed for defaulting on renewable energy purchase obligations (RPO) for three financial years.
The commission has ordered the distribution companies (DISCOMs) to pay the penalty within a month.
“Penalizing DISCOMs for non-compliance of RPO is a rare and welcome occurrence. Hopefully, this sets a precedent that other state regulatory commissions can follow. Non-compliance of RPOs is the biggest culprit when it comes to solar and wind procurement in the country,” said Raj Prabhu, CEO of Mercom Capital Group.
The petition was filed by <a href="http://www.greenrg.org.il/he-il/english.htm" target="_blank" rel="noopener noreferrer">Green Energy Association</a> and the Indian Wind Power Association (IWPA) before the commission against TPDDL, BYPL, and BRPL. The petition was filed for non-compliance of RPO for FY 2012-13 to 2014-15 by the three DISCOMs of Delhi.
The petitioners had alleged that the commission had allocated funds to the distribution companies (DISCOMs) for the purchase of renewable energy certificates (RECs) to meet the RPO, and even when RECs were available in the market, no efforts were made by the DISCOMs to fulfill their RPO.
After considering the submissions of the DISCOMs, a show-cause notice was issued against the petition filed by the Green Energy Association.
However, before the final order was pronounced, BRPL and BYPL filed petitions before the commission seeking an extension of time for fulfilling the RPO.
The commission, in its order, observed, &#8220;There is no doubt that DISCOMs have failed to meet their RPO. Keeping in view all factors and various directions of the Appellate Tribunal for Electricity (APTEL), it is established that the failure of DISCOMs to meet the RPO make them liable to pay penalty.&#8221;
A penalty of ₹100,000 (~$1,409) for each year of default and an additional ₹5,000 (~$70.45)/day fine for continuing to default until DISCOMs met the RPO for a given year, was imposed by the commission.
The order stated that BRPL and BYPL had reported no compliance of RPO, and they are in continuous default of meeting the RPO.
In January 2019, <a href="https://mercomindia.com/delhi-draft-rpo-rec-regulations/" target="_blank" rel="noopener noreferrer">Mercom</a> had reported that DERC issued draft regulations for the implementation of renewable purchase obligation and renewable energy certificate frameworks. This was a move in the right direction by the Delhi commission, considering the <a href="https://mercomindia.com/most-states-fail-rpo-targets/" target="_blank" rel="noopener noreferrer">poor record of states</a> in adhering to RPO targets.
In the <a href="https://mercomindia.com/mercom-exclusive-renewable-purchase-obligation-compliance-needs-improve-fast-india-meet-solar-installation-targets/" target="_blank" rel="noopener noreferrer">past</a>, rather than imposing a penalty on defaulters, the DERC allowed DISCOMs to carry the shortfall forward to the next year, and as a result, the exemption did not include a penalty.

Delhi Penalizes Three DISCOMs for Defaulting on Renewable Purchase Obligations

The Central Electricity Regulatory Commission (<a href="http://www.cercind.gov.in/" target="_blank" rel="noopener noreferrer">CERC</a>) has passed an order that will give compensation relief from the safeguard duty to four developers after they petitioned the commission citing the Change in Law clause. The clause recognizes contracts that are already in force when a law change occurs, like in the case of the safeguard duty.
Four petitioners &#8211; ReNew Solar Power, Phelan Energy India RJ Pvt. Limited, Clean Sustainable Energy Pvt Ltd, and Mahoba Solar (UP) Pvt Limited. The companies had filed the petition against SECI, BSES Yamuna Power Limited, Jaipur Vidyut Vitran Nigam Ltd, and Ajmer Vidyut Vitran Nigam Ltd, and Jodhpur Vidyut Vitran Nigam Ltd, filed for relief, seeking compensation of the safeguard duty on the imports of solar cells and modules.
“Such imposition of safeguard duty may result in an increase in non-recurring expenditure as well, if certain modules are imported as a part of O&amp;M up to July 30, 2020,” states the petition.
The four petitioners have asked for lump sum compensation of ₹739.5 million (~$10.5 million) to be paid to the petitioner on account of the additional levy of safeguard duty and IGST on importing solar cells, along with interest. They have requested CERC to direct the SECI to pay within 60 days from the date a claim was filed by the petitioner, failing which it will attract late payment surcharge as provided under PPA.
SECI had selected ReNew Solar Power, Phelan Energy India RJ Pvt. Limited, Clean Sustainable Energy Pvt Lit, and Mahoba Solar to develop solar projects in Rajasthan’s Bhadla Solar Park. The four solar developers submitted bids and separate PPAs were executed for the contracted capacity of 50 MW each. According to Mercom&#8217;s <a href="https://mercomindia.com/product/india-solar-project-tracker/" target="_blank" rel="noopener noreferrer">India Solar Project Tracker</a>, SECI auctioned 250 MW Bhadla Phase IV solar park project &#8211; out of which Phelan Energy got 50 MW and they signed PPA on November 2017.
The commission has directed the four petitioners to submit to SECI all the relevant documents showing a clear and one-to-one correlation between the projects and the supply of imported goods until the scheduled commissioning dates.
The commission has directed SECI to reconcile the claim related documents within 15 days of submission by the petitioners. The commission has also suggested that the petitioners and SECI can mutually agree to a mechanism for the payment of compensation on annuity basis spread over a period not exceeding the duration of the power purchase agreements as a percentage of the tariff agreed in the PPAs.
In September 2019, <a href="https://mercomindia.com/safeguard-duty-considered-acme-solar-projects/" target="_blank" rel="noopener noreferrer">Mercom</a> reported that the Karnataka Electricity Regulatory Commission (KERC) stated that the imposition of the safeguard duty would be treated as ‘Change in Law’ for ACME Solar’s projects in Karnataka.
In <a href="https://mercomindia.com/solar-safeguard-duty-change-in-law-merc/" target="_blank" rel="noopener noreferrer">February this year</a>, the Maharashtra Electricity Regulatory Commission in its order also reiterated that the safeguard duty is an event of Change in Law, and therefore, the additional expenditure and other impacts will be considered for reimbursement.

Four Solar Developers Get Safeguard Duty Relief from CERC

In a recent order, the <a href="http://www.cercind.gov.in/" target="_blank" rel="noopener noreferrer">Central Electricity Regulatory Commission</a> (CERC) directed the <a href="https://posoco.in/" target="_blank" rel="noopener noreferrer">National Load Dispatch Centre</a> (NLDC) and <a href="http://www.upsavesenergy.com/" target="_blank" rel="noopener noreferrer">Uttar Pradesh New and Renewable Energy Development Agency</a> (UPNEDA) to issue the renewable energy certificate (RECs) to Rana Sugars, the petitioner, for a period from March 2016 to April 2017.
The commission observed that the RECs were denied on account of procedural and technical issues on which the respondent has no power or authority and that it could only be permitted by the commission.
Rana Sugars, a company having a captive power project, filed a petition with the Central Electricity Regulatory Commission (CERC) against the National Load Despatch Centre (NLDC) and Uttar Pradesh New and Renewable Energy Development Agency (UPNEDA), seeking directions for the issuance of pending RECs and reaccreditation of the petitioner&#8217;s project under the REC mechanism.
Rana Sugars has an installed capacity of 27.4 MW out of which 7.4 MW is registered under the REC mechanism.
The company had requested the CERC to direct the two respondents to provide the petitioner an online link to submit the application for reaccreditation with the state agency and after that, renew the registration of its project under the REC mechanism. It had also requested the commission to direct the respondents to allot the RECs for the period between March 2016 and April 2017 and also direct them to pay the costs of the instant petition.
In November 2011, the captive power project of Rana Sugars was commissioned, and in January 2012, the company was awarded a Certificate of Accreditation for 7.4 MW capacity utilizing biofuel generation (non-solar) valid for a period of five years (January 12, 2017). On August 2, 2012, Rana Sugar registered 7.4 MW under the REC mechanism for a period of five years (August 1, 2017).
On March 28, 2016, the commission amended the REC Regulations, 2010 and inserted a clause that said that a captive generation project based on renewable energy sources having self-consumption will be eligible to participate in the REC program if it is commissioned between September 29, 2010, and March 31, 2016, and registered with NLDC under REC program on or before June 20, 2016.
Later in October 2016, the petitioner was required to apply for the reaccreditation of its project with UPNEDA (Respondent 2) at least three months before the date of expiry of its accreditation.
In June 2017, the petitioner informed UPNEDA to write a mail to NLDC asking them to restore the link so that it may be able to file the online application. After a month in July 2017, Rana Sugars again sent a letter to UPNEDA, requesting to provide the online link to submit the online application for reaccreditation with the state agency immediately and after that, renew the registration of the project under the REC mechanism. On August 11, 2017, the respondent, however, sent an email to the petitioner rejecting its request for revalidation of the accreditation certificate of the latter “without giving any cogent reason for the same.”
The commission in its order stated that the petitioner did not comply with the provisions of the REC Regulations, 2010 and its detailed procedure, and has accepted its mistake regarding the non-initiation of the process of revalidation of reaccreditation of the project under REC mechanism before three months of the expiry of the existing registration, as stipulated in the Model Guidelines for Accreditation of a Renewable Energy Generation Project or Distribution Licensee.
The commission observed that the RECs were denied on account of procedural and technical issues.  “The commission condones the procedural delay by the petitioner in applying for revalidation for accreditation. In view of the above, the Commission directs the respondents to issue the RECs for the period from March 2016 to April 2017,” the commission’s order stated.
In May 2019, <a href="https://mercomindia.com/cerc-extends-validity-of-recs-april-october-2019/" target="_blank" rel="noopener noreferrer">Mercom</a> reported that the CERC had issued an order extending the validity of RECs which were due to expire between April 1, 2019, and October 31, 2019, thus giving much relief to renewable energy generators of both solar and non-solar projects which are a part of the REC mechanism.
In October 2018, the <a href="https://mercomindia.com/validity-of-recs-extended-cerc/" target="_blank" rel="noopener noreferrer">central commission</a> had issued an order extending the validity of 183,999 RECs that were issued before April 1, 2017.

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