NON-AVAILABILITY OF DEEMED EXPORT BENEFITS TO THERMAL POWER PLANT UNDER FOREIGN TRADE POLICY

INTRODUCTION

1. The Supreme Court in one of its recent judgments in Nabha Power Limited v. Punjab State Power Corporation Limited and Ors.[1] (‘Judgement’) provided a significant clarification relating to availability of deemed export benefits under Foreign Trade Policy, 2009-2014 (‘FTP’) and interpretation of “Change in Law” provisions under Power Purchase Agreements (‘PPAs’) with regards to any change in taxes being introduced/withdrawn by Government vide circulars/orders/public notices. This decision would now serve as a crucial precedent on the eligibility criteria for deemed export benefits and the contractual obligations arising from policy changes affecting power sector projects.
2. The Judgement concerned disputes of coal-based thermal power projects namely, Nabha Power Limited (‘NPL’) and Talwandi Sabo Power Limited (‘TSPL’) relating to “Change in Law”.
3. NPL was incorporated by the Punjab State Electricity Board (‘PSEB’) in September 2007 to develop a 2×700 MW project at Rajpura. After PSEB’s unbundling, L&T Power Development Limited acquired full ownership of NPL through a competitive bidding process in 2009, and Punjab State Power Corporation Limited (‘PSPCL’), PSEB’s successor, entered into PPAs with both NPL and TSPL.
4. The dispute, as per the judgment, arose when both NPL and TSPL being denied “Change in Law” and FTP related benefits had approached the Punjab State Electricity Regulatory Commission (‘Commission’) seeking compensation under Article 13.1.1(ii) of their respective PPAs for the alleged withdrawal of Foreign Trade Policy benefits post the cut-off date (1^st Round). They also sought a declaration that Mega Power Project benefits were factored into their bids and hence did not warrant pass-through to PSPCL. The Commission dismissed these petitions on November 12, 2012, holding that the NPL & TSPL were precluded from claiming concurrent benefits under both the Mega Power Policy (Policy) and FTP.
5. Following an appeal (2^nd Round), APTEL remanded the matter for reconsideration. Upon remand (3^rd Round), the Commission reiterated its earlier position in its order dated December 16, 2014. The companies then approached APTEL again (4^th Round), which delivered its judgment on July 4, 2017, rejecting their claims. This led to filing of the present appeals (Final Round) before the Supreme Court under Section 125 of the Electricity Act, 2003 (the Act).

QUESTIONS OF LAW

6. The Supreme Court was called upon to decide three critical questions of law;

• Whether deemed export benefits under Paragraph 8.3 of the FTP Policy were available to the Appellants as of the bid cut-off date, and whether subsequent notifications issued by the Directorate General of Foreign Trade constituted a “Change in Law” under the PPA?
• Whether the Press Release of Cabinet Decision on the change of threshold for deemed export benefits would constitute a “Change in Law” under the PPA?
• If such changes constituted “Change in Law”, whether the Appellants were entitled to any restitutionary relief?

INTERPRETATION OF “CHANGE IN LAW” PROVISIONS

7. The Supreme Court’s analysis centred on Article 13.1.1 of the PPA which defined “Change in Law” as any enactment, bringing into effect, adoption, promulgation, amendment, modification, or repeal of any Law after the specified cut-off date. Applying the golden rule of contractual interpretation, the Court emphasized that words should be given their ordinary and grammatical meaning.
8. The Court relied on its decision in NPL v. PSPCL[2] wherein it had determined that the Press Release dated October 1^st , 2009 regarding the Union Cabinet’s decision to modify the Mega Power Policy did not constitute a “Change in Law” as it lacked the essential characteristic of being a binding command. The Court in that case further noted that the legal framework required such notifications to be issued in a prescribed manner and duly published in the official gazette to take effect, consistent with Section 21 of the General Clauses Act, 1897. It is to be noted that in the present case, since the Court had held NPL to be ineligible for claiming benefits under FTP, it had not dwelled on the issue whether public notices dated April 27^th and 28^th, 2011 amounted to “Change in Law”.

DEEMED EXPORT BENEFITS UNDER FOREIGN TRADE POLICY

9. After careful examination of Chapter 8 of the FTP, the Court identified following five essential prerequisites that must be satisfied to be eligible for deemed export benefits:

• The claim for Deemed Export Benefits must relate exclusively to “goods” and is inapplicable to anything that is not “goods.” The Court referred to various definitions of “goods” as denoting movable items, excluding immovable properties and actionable claims. An integrated power plant comprising boilers, turbines, and civil works do not qualify as “goods” under this definition.
• The goods must be “manufactured in India” as defined under Paragraph 9.36 of the FTP. The Court clarified that “manufacture” requires transformation resulting in a new product with distinctive name, character, or use, referencing the authoritative definition from Union of India and Another v. Delhi Cloth and General Mills Co. Ltd.[3] Crucially, the Court noted that manufacturing and production activities are normally associated with movable articles and goods and are not used to denote construction activity.
• There must be an actual “supply of goods” to the power project as contemplated under Paragraph 8.2(g) of the FTP.
• The supply must be affected by either main contractors or sub-contractors to the concerned project, not through self-manufacturing by the project entity.
• Procurement must adhere strictly to International Competitive Bidding (ICB) procedures as mandated by Paragraphs 8.2 and 8.4.4(iv) of the FTP.

10. The Court found that the Appellants did not satisfy these prerequisites and that the projects were not eligible for deemed export benefits under FTP. The Court specifically rejected attempts of the Appellants to interpret the embedded thermal power plant as “capital goods” eligible for deemed export benefits and while doing so observed that an entitlement to the deemed export benefits only accrue when the goods, as manufactured by the main contractor, are supplied to the Project, i.e., NPL/TSPL, or in the alternative, the goods are manufactured by the sub-contractor and supplied directly to the project or through the main contractor; which according to the Court had not transpired in the case at hand.

EFFECT OF DGFT NOTIFICATIONS

11. The Supreme Court held that the Directorate General of Foreign Trade (‘DGFT’) notifications dated 28 December 2011 and 21 March 2012 were “merely clarificatory in nature” rather than introducing new legal interpretations. The Court found that no prior interpretation existed suggesting that developers could import goods for power plant assembly and simultaneously claim deemed export benefits. This principle establishes that administrative clarifications distinguishing existing legal positions do not constitute a “Change in Law”.

CONCLUSION ON COMPENSATION CLAIMS

12. Having determined that the Appellants had failed to establish their eligibility to claim deemed export benefits, and that neither the Press Release nor the DGFT notifications constituted a “Change in Law”, the Court concluded that no question of compensation as restitutionary relief could arise. The Supreme Court thus dismissed both Appeals.

IMPACT ON VARIOUS STAKEHOLDERS AND WAY FORWARD

13. The judgement has significant implications for stakeholders across multiple dimensions of power sector jurisprudence and commercial law; and thus the Authors apprehend a Review being filed against the judgment to request the Court to have a relook at the judgment from a different and a broader perspective For power developers, the decision has established stringent criteria for claiming deemed export benefits, effectively stating what many considered a beneficial interpretation of a FTP. With respect to contractual interpretation, the judgment has clarified the significance of express contractual terms over business efficacy considerations and has established that “Change in Law” provisions must be interpreted strictly according to their plain & ordinary meaning.
14. The decision has upheld the sanctity of contractual risk allocation while laying down jurisprudence on the intersection between FTP and power sector regulations. Vide the present judgment the Court has provided a yardstick to be used for future power sector transactions, in case of such “Change in Law” disputes and aspects to be factored in by a power producer/Project SPV while entering into PPAs . The judgment serves as a cautionary reminder that contractual benefits cannot be claimed without satisfying all statutory prerequisites, regardless of commercial expectations or industry practice.

The views and opinions expressed in this Article are those of the author(s) alone and meant to provide the readers with understanding of the judgment passed in Nabha Power Limited v. Punjab State Power Corporation Limited and Others [2025 INSC 1002]. The contents of the aforesaid Article do not necessarily reflect the official position of Saga Legal. The readers are suggested to obtain specific opinions/advise with respect to their individual case(s) from professional/experts and not to use this Article in place of expert legal advice.

Co-authored by :

Ishwar Ahuja, Partner ([email protected]) and,

Bhairavi SN, Senior Associate ([email protected]), assisted by Sanjeevani Midha, Intern

[1] 2025 INSC 1002

[2] (2025) 5 SCC 353

[3] 1962 SCC OnLine SC 148