xiii. On perusal of the statement of objections submitted on 10.12.2019 by Respondent No.1 at Annexure R-2 wherein the shareholding pattern existing as on 31.07.2017 has been exhibited, and the shareholding pattern as per CA certificate dated 31.03.2018 as submitted by the Petitioner, the Commission notes that there is change in the number of shares held by the consumers as on July, 2017 and that on March, 2018 but the total no. of 42,32,800 Equity shares remains the same. Thus, there has been a change in the share-holding pattern in FY2017-18 as compared to equity shareholding pattern during incorporation of the company in July, 2014. It is to be noted that a generating plant should be established as a ‘captive generating plant’ under Section 2 (8) read with Section 9 of the Electricity Act, 2003. In this case the Commission notes that no material evidence has been submitted by the Petitioner illustrating the equity shareholding pattern of the captive users at the time of setting up of the generating unit for ascertaining that the generating unit was set up as a captive generating unit under Section 2(8) of the Electricity Act, 2003. Thus, due to lack of material evidence, the Commission is unable to ascertain the shareholding pattern of the captive users at the time of establishment of the generating unit. Hence, the Petitioner should have produced material evidence with respect to the proprietorship of the captive users not less than 26% of the ownership in the CGP at the time of establishment of the captive unit. Until and unless the Petitioner places the required evidence to prove the captive status of the generating plant at the time of establishment, the Commission is unable to declare the generating plant as a captive generating unit for FY2017-18. Thus, in view of the above discussions, we are unable to come to a conclusion as to whether the generating plant was established as a captive generating plant under Section 2(8) read with Section 9 of the Electricity Act, 2003. In the absence of establishing the above facts properly, the prayer of the Petitioner for declaration of the captive status of its generating plant is to be dismissed by the Commission.”
