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2019 (12) TMI 1093 - HC - Central ExciseRectification of mistake - error apparent on the face of record - subsequent change in law - Levy of penalty - appellant herein had paid the duty before issuance of SCN - whether a subsequent declaration of law through decision of the apex court can be considered as a mistake apparent on the face of the record, enabling a rectification under Section 35C(2) of the Act? HELD THAT:- In a catena of decisions of the Hon’ble apex court it is held that, 'a mistake apparent on the record' must be an obvious and patent mistake and the mistake should not be such which can be established by a long drawn process of reasoning. The power to rectify a mistake should be exercised when the mistake is a patent one and should be quite obvious. The mistake cannot be such, which can be ascertained by a long drawn process of reasoning. Further, while rectifying a mistake, an erroneous view of law or a debatable point cannot be decided; or an incorrect application of law can also not be corrected. When the appeal was decided by the Tribunal through Annexure A order, the decision was taken based on the law as it stood then. In a subsequent decision of the hon'ble Supreme Court the law was declared as otherwise, based on a change of opinion. Such a change of opinion of law cannot be taken as a 'mistake apparent on the face of the record' which could be rectified by invoking Section 35C(2) of the Central Excise Act. Further, such material cannot be used for unsettling the settled position attained through disposal of the appeal, alleging that there occurred any mistake apparent from the face of the record. It cannot be utilized for reopening a concluded decision, which had attained finality between parties inter se - thus, the above appeal has to succeed. The question of law framed is answered in favour of the appellant and against the Revenue.
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