BEFORE THE GUJARAT ELECTRICITY REGULATORY COMMISSION GANDHINAGAR Petition No 1712 of 2018 In the matter of: Petition under the provision of Electricity Act, 2003 read with GERC (Terms and Conditions of Intra- State Open Access) Regulations, 2011 and in the matter of seeking refund of amount of transmission wheeling charges paid by the Petitioner company Under Protest and in the matter of decision/ order dated 10.05.2017 passed by the Respondent authority rejecting the request/application of refund of amount paid towards Exit Option Charge for Wind Mill No. ADO-36 made by the Petitioner company. Petitioner: Gokul Refoils and Solvent, Gokul House, 43, Shreemali Co-Operative Housing Soc. Ltd., Opp. Shikhar Building, Navrangpura, Ahmedabad. Co-Petitioner: Gokul Agri International Ltd, State Highway No. 41, Near Sujanpur Patia, Sidhpur, District: Patan, Pin Code – 384151 Represented by: Learned Advocate Shri Satyan Thakkar and Shri Nisarg Rawal V/s. Respondent: Gujarat Energy Transmission Corporation Ltd. Sardar Patel Vidyut Bhavan, Race Course, Vadodara- 390 007. Represented by: Learned Sernior Advocate Shri M. G. Ramchandran with Advocate Ms. Ranjitha Ramchandran and Ms. Venu Birappa CORAM: Shri Anand Kumar, Chairman Shri P. J. Thakkar, Member Date: 09/03/2020 ORDER 1 1 The present petition has been filed by M/s Gokul Refoils & Solvent Limited and M/s Gokul Agri International Limited seeking following prayer: “The Commission may be pleased to quash and set aside the impugned decision/order dated 10.05.2017 passed by the Additional Engineer (R&C), Gujarat Energy Transmission Corporation Limited and further be pleased to direct the Gujarat Energy Transmission Corporation Limited i.e. the opponent to refund the amount of Rs. 60,76,707/- paid by the Petitioner company “under protest” towards Exit Option Charges / Transmission Wheeling Charges for Wind Mill No. ADO36 to the Petitioner/opponent company.” 2 Facts narrated in the Petition are as follows: 2.1 Petitioner No.1, M/s Gokul Refoils & Solvent Limited, is a company registered under the Companies Act, 1956 and is one of the leading FMCG companies of the Country, dealing with edible oils. 2.2 Petitioner No. 2, M/s Gokul Agri International Limited, a company registered under the Companies Act, 2013 (100% subsidiary of M/s Gokul Refoils & Solvent Limited) and M/s Gokul Agro Resources Limited, also a company registered under the Companies Act, 2013 are resultant demerged companies of Gokul Refoils and Solvent Limited, Gandhidham Unit. 2.3 Petitioner No. 1 being desirous of generating energy through Wind Farms and with a view to conserve/control the costs of production, had set up Wind Mill Farms at following locations: (i) Two Wind Mills at Village: Moti Sindholi, Tal: Abadasa, Dist. Kutch (Wind Mill Nos.V05 & V06) (ii) Two Wind Mills at Village: Kadoli (Wind Mill Nos. M16 and M17) (iii) Two Wind Mills at Village: Ratanpar, Tal. and Dist. Porbandar (Wind Mill Nos. ADO- 33 and ADO-36) 2.4 The Petitioner No.2 had for the said purpose, also entered into and executed Wheeling Agreements dated 11.7.2012 with GETCO and an agreement dated 2 26.7.2012 with Paschim Gujarat Vij Company Limited (PGVCL) for wheeling of the energy generated at Wind Farm ADO-33 and ADO-36, Village : Rajpar, Dist. Porbandar to its captive Manufacturing unit at 89, Meghpar Borich, Galpadar Road, Nr. Sharma Resort, Taluka: Anjar, Dist. Kutchh- 370 110. 2.5 Under the said Agreements, wheeling of energy from Wind Turbines to the desired location within the State was to be allowed upon payment of transmission charges and losses otherwise applicable to the normal Open Access Regulation. Clause 3.3 which is related to wheeling of energy, specifically provided that ‘the Company will be eligible to wheel the energy, with DISCOM for the respective month from the date of signing of this Agreement and injection into the GETCO Grid System as per this Agreement and the Agreement with GETCO shall transmit the energy to the boundary of DISCOM. The energy so wheeled (net of Wheeling/Transmission loss/ charge) shall be set of against monthly consumption of the Company’s recipient unit located in the DISCOM as per Clause 7 of the Agreement. 2.6 A similar Agreement with the identical terms and conditions was executed between the Petitioner and PGVCL on 26.7.2012. 2.7 Subsequent thereto, for the purpose of efficient management of the Petitioner No. 1 company and its units in a decentralized manner and with a view to achieving geographical operational efficiency, the management of the Petitioner No.1 proposed to separate each business undertaking based on the location of the undertaking into separate companies. Therefore, with a view to effect such reorganization, a Scheme of Arrangement in the nature of demerger and transfer of undertaking was proposed by the Petitioners in the Hon’ble Gujarat High Court by way of Company Petition No. 36 of 2015, 37 of 2015 and 38 of 2015 for the purpose to get sanction to a scheme of arrangement in the nature of de-merger and transfer of Gandhidham Undertaking of Gokul Refoils & Solvent Limited to Gokul Agro Resources Limited and consequential to restructure of Share Capital of Gokul Refoils and Solvent Limited, which was proposed under Section 391 to 394 read with Section 78 and 100 to 103 of the Companies Act, 1956 and subsequent transfer of respective Wind Mill Units as follows: 3 (a) Demerger and transfer of Gandhidham Undertaking (Gandhidham Wind Mill Undertaking from the Petitioner No.1 Company to Gokul Agro Resources Limited) (b) Transfer of Sidhpur Undertaking (Sidhpur Undertaking and Sidhpur Wind Mill Undertaking) of the Petitioner Company No. 1 to Gujarat Agri International Limited i.e. the Petitioner No. 2 to the present petition. (c) Retention of remaining Undertaking by the Petitioner No. 1 Company. 2.8 Pursuant to the said sanction of Scheme of Arrangement in nature of De-merger and Transfer of Undertaking, vide letter dated 10.9.2015, the Petitioner Company requested the Opponent GETCO to change the Wind Mill Agreements as follows: Wind Wind Mill Sub-station New Wind Mill Agreement with Wheeling to Mill Location demerged (Resulting Company) Consumer No. V05 Village: Moti Vanku Gokul Agro Resources Limited, Consumer No. Sindholi, Phase I, Survey No. 76/1, 80, 89 & 91, 31511 at Tal. Abdasa, Ta. Abdasa Galpadar Road, Nr Sharma Megpar Dist. Kutch Dist. Kutch Resorts, Meghpar, Borichi, Ta. Borichi, Ta. Anjan, Dist. Kutch 370 110. Anjar M16 Village: Vanku- Gokul Agro Resources Limited, Consumer No. Kadoli, Phase II Survey No. 76/1, 80, 89 & 91, 31511 at Ta. Abdasa Ta. Abdasa, Galpadar Road, Nr Sharma Megpar Dist. Kutch Dist. Kutch Resorts, Meghpar, Borichi, Ta. Borichi, Ta. Anjan, Dist. Kutch 370 110. Anjar ADO- Village: Adodar Gokul Agro Resources Limited, Consumer No. 33 Ratanpar, (Tukda) Survey No. 76/1, 80, 89 & 91, 31511 at Tal: Ta. Galpadar Road, Nr Sharma Megpar Porbandar Porbandar Resorts, Meghpar, Borichi, Ta. Borichi, Ta. Anjan, Dist. Kutch 370 110. Anjar V-06 Village: Moti Vanku Gokul Agri International Consumer Sindholi Phase I, Limited, State Highway No. 41, 29241 at Ta. Abdasa, Ta. Abdasa, Nr. Sujanpur Patia, Sidhpur Dist. Kutch Dist. Kutch Sidhpur- 384 151 M17 Village: Moti Vanku Gokul Agri International Consumer Sindholi Phase I, Limited, State Highway No. 41, 29241 at Ta. Abdasa, Ta. Abdasa, Nr. Sujanpur Patia, Sidhpur Dist. Kutch Dist. Kutch Sidhpur- 384 151 ADO- Village: Adodar Gokul Agri International Consumer 36 Ratanpar (Tukda) Limited, State Highway No. 41, 29241 at Ta. Ta. Nr. Sujanpur Patia, Sidhpur Porbandar Porbandar Sidhpur- 384 151 2.9 On the receipt of the said letter/application dated 10.9.2015., GETCO demanded various documents for the purpose of modification of the Wheeling Agreements and 4 along with the said letter, also demanded an amount of Rs. 50,000/- per application as registration charges for the change in Wheeling Agreements in the names of new Companies. 2.10 Vide letter dated 18.1.2016, another application was made by the Petitioner to GETCO enclosing a Demand Draft of Rs. 50,000/- per application and also enclosing the documents as demanded by GETCO. It is also relevant to note that pursuant to the request made by Gokul Agro Resources Limited to PGVCL, it approved the merger of two consumer connection Nos. 31368 and 31511 into a single merger connection in Consumer No. 31511 at Anjar. Thereafter, vide letter dated 27.1.2016, the Petitioner brought to the notice of GETCO that the amount of registration charges being Rs. 50,000/- per application has already been paid and also enclosed all the documents that were demanded by GETCO and hence, request was made soliciting GETCO’s co-operation for the change of name and percentage allocation of Wind mill generation and Consumer No. 31511 as required by PGVCL for giving credit of the units generated through Wind Mill, in the electricity bill for January, 2016 in respect of Consumer No. 31511. 2.11 Subsequently vide letter dated 21.3.2016 addressed to the GETCO, the Petitioner No. 1 highlighted the aforesaid facts as well as the Order of Hon’ble Gujarat High Court and in respect of demand made by GETCO for payment of Rs. 67,09,065/- (initially vide first letter GETCO demanded Rs. 1,41,29,693/- from the Petitioner, however, the said amount was subsequently reduced to Rs. 67,09,065/-) for the two Wind Mills at Ratanpur, Porbandar for the Wind Location Nos. ADO-33 and ADO-36 being the purported Transmission Wheeling Charges for remaining 8 years, it was submitted that the transfer of Wind Mill and other assets of the Company consisting of movable and immovable properties, is as per the Order of the Hon’ble High Court of Gujarat in the matter of de-merger of an existing company and that such transfer is by operation of law.