NDLI: Uttar Haryana Bijli Vitran Nigam Ltd [uhbvnl]. & Anr Vs. Adani Power Ltd. & Ors.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Electricity amendment Special Economic Zone Power Purchase Agreements(PPAs) change in law
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Central Excise Act, 1944 (1 of 1944) Customs Act, 1962 (52 of 1962) Customs Tariff Act, 1975 (51 of 1975) Special Economic Zones Act, 2005 (28 of 2005)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Dismissed
Headnote	Electricity – Power Purchase Agreements(PPAs) – Adjustment in monthly tariff payment on account of change in law – Appellants in C.A. No.5865 of 2018 are distribution licensees in the State of Haryana – Appellant in C.A. No. 6190 of 2018 is the Gujarat Urja Vikas Nigam Ltd. (GUVNL), assigned with the task of procuring power by the State of Gujarat – Respondent, a generating company has a 4620 MW coal-fired power plant at Mundra, District Kutch,Gujarat – On 23.06.2005 SEZ Act was enacted – U/s.26, SEZ Act every Developer shall be entitled to various exemptions, such as duty leviable u/Customs Act, Customs Tariff Act etc.– Respondent approved as Co-Developer (which is included within the term“Developer”) – Appellant established a power plant in the aforesaid SEZ – Respondent entered into various PPAs inter alia dtd 07.08.2008 and 02.02.2007, with the appellant – Ministry of Commerce &Industry (MoC&I) vide notification dtd. 06.04.2015 withdrew the exemption of all duties under the Customs Act, Customs Tariff Actetc. on goods imported/procured by the respondent – Vide notification dtd.16.02.2016 exemption from service tax, to which the respondent was entitled, also withdrawn – Respondent filed petition before the Central Electricity Regulatory Commission(CERC) seeking compensation for change in law by invoking Art.13 of the respective PPAs – Allowed, however held that respondent’sprayer to grant carrying cost on restitutionary principles from the date of change in law till the date of decision cannot be allowed –Judgment set aside by Appellate Tribunal – On appeal, held:Art.13.4.1 makes it clear that adjustment in monthly tariff payment on account of change in law shall be effected from the date of the change in law [sub-clause (i) of clause 4.1], in case the change inlaw happens to be by way of adoption, promulgation, amendment, re-enactment or repeal of the law or change in law– Art.13.4.1 is subject to Art.13.2 of the PPAs –Art.13.2 is an in-built restitutionary principle which compensates the party affected by such change in law – Art.13.2, however, goes on to divide such restitution into two separate periods – Restitutionary principles apply in case a certain threshold limit is crossed in both sub-clauses (a) and (b) –Indisputably, the present case is covered by sub-clause (b) and the aforesaid threshold has been crossed – Mechanism for claiming a change in law is then set out by Art.13.3 of the PPA – Sub-clause(c) does not occur in the PPA in C.A. No.5865 of 2018 – Present case is governed by sub-clause (i) of Art.13.4.1, it is obvious that sub-clauses (b) and (c) have no application to the facts of the present case –A reading of Art.13 as a whole, therefore, leads to the position that subject to restitutionary principles contained in Art.13.2, the adjustment in monthly tariff payment, in the facts of the present case, has to be from the date of the withdrawal of exemption which was done by administrative orders dtd. 06.04.2015 and 16.02.2016– Present case, therefore, falls within Art.13.4.1(i) – Respondents entitled to adjustment in their monthly tariff payment from the date on which the exemption notifications became effective – No reason to interfere with the judgment of the Appellate Tribunal – Electricity Act, 2003 – s.2(18) – Special Economic Zones Act, 2005 – s.26 –Customs Act, 1962 – Customs Tariff Act, 1975 – Central Excise Act,1944.
Judge	Hon'ble Mr. Justice R.F. Nariman
Neutral Citation	2019 INSC 261
Petitioner	Uttar Haryana Bijli Vitran Nigam Ltd [uhbvnl]. & Anr
Respondent	Adani Power Ltd. & Ors.
SCR	[2019] 4 S.C.R. 487
Judgement Date	2019-02-25
Case Number	5865

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