TMI Blog2019 (12) TMI 1093X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - C.E. Appeal. No. 10 OF 2019 - - - Dated:- 6-12-2019 - THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM And THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR FOR THE PETITIONER : GEORGE JOHNSON V.S.MANOJ FOR THE RESPONDENT : SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF EXCISE AMP; CUSTOMS JUDGMENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of apex court in Rashtriya Ispat Nigam Ltd. (supra). But in view of the subsequent decision of the Honourable Supreme Court in Dharmendra Textiles (supra), it is felt that the earlier decision of the Tribunal would be in conflict with the ratio settled therein. Therefore the Tribunal found that the final order passed in the appeal need to be recalled and the appeal need to be re-heard and decided. Accordingly the appeal was restored and heard again and decided through the order passed on 26.7.2018, which is impugned herein. 4. In the impugned order, the Tribunal found that, in Dharmendra Textiles (supra) the apex court had held that there is no scope for any discretion with respect to imposition of penalty and that levy of penalty is mandatory under Section 11AC. According to the Tribunal, even though the decision of the hon'ble Supreme Court is rendered after the order of the Tribunal, it would be the case of an error apparent from the face of records, and a rectification of the mistake is possible. In support of such proposition, the Tribunal had placed reliance on a larger bench decision of the Tribunal itself reported in Hindustan Lever Ltd. v. Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hear and decide the appeal afresh. It is further pointed out that, while deciding the appeal afresh through the order impugned herein, the imposition of penalty was reaffirmed based on a subsequent decision of the apex court, which ought not have been taken as a ground to reverse the earlier order in the appeal, which had attained finality in between parties inter se. 8. While evaluating the rival contentions regarding maintainability of the challenge raised, we are of the opinion that the appellant can be permitted to take all the grounds available, in order to challenge the fresh order passed in the appeal, including the ground that recalling of the earlier order was illegal and erroneous. We are of the considered opinion that, provisions contained in Section 105(2) of the Code of Civil Procedure, 1908 will govern the issue involved, especially in view of Section 35G(9) of the Central Excise Act, which provides that provisions of Code of Civil Procedure, 1908 will apply with respect to appeals to the High Court filed under Section 35G. Hence, we are of the considered opinion that, any failure to challenge the order passed by the Tribunal allowing the rectification of mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded by learned counsel for the appellant that a subsequent judicial decision will not come within the ambit and scope of 'obvious and patent mistake' which could be rectified in exercise of power vested under Section 35C(2) of the Act. 11. On the contrary, learned Standing Counsel argued that, the judicial decision acts retrospectively. It is not the function of the court to pronounce a new Rule, but to maintain and expound the old one. The judges do not make law. They only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, the latter decision does not make any new law. It only discovers the correct principle of law, which has to be applied retrospectively. Even where an earlier decision of the court operates for quite sometime, the decision rendered later clarifying the legal position would have retrospective effect, which was not correctly understood earlier. In this respect, he placed reliance on a decision of the apex court in Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. (2008 (230) ELT 385 (S.C.). He also placed reliance on a decision of the High Court of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Income Tax[2009(248) ELT 3(SC)], the hon'ble Supreme Court had occasion to consider the scope of Section 154 of the Income Tax Act, 1961 which is in pari materia with Section 35C(2) of the Central Excise Act, 1944. Question considered was whether it was open to the Commissioner of Income Tax to rectify its own order under Section 154, on the basis of the judgment of the Supreme Court(later judgment). The apex court analyzed as to whether there existed a 'rectifiable mistake' enabling the Department to invoke Section 154 of the Act. It was found that, there is a clear dichotomy between Section 154 and 147 of the Income Tax Act. Section 154 deals with rectification of mistake which inter alia states that, with a view to rectify any mistake apparent from the record, an Income Tax Authority may amend any order passed by it. Whereas Section 147 inter alia, states that, if the Assessing Officer has reason to believe that any income charged to tax had escaped assessment for any assessment year, he may, subject to other provisions contained in the Act, assess or re-assess such income which had escaped the assessment. On the facts of the said case, on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. v. Commissioner, Trade Tax, UP[2008(221) ELT 16(SC)], it was found that apparent means visible; capable of being seen, obvious, plain. It means open to view, visible, evident, appears, appearing as real and true, conspicuous, manifest, obvious, seeming. It was found that, rectification of an order does not mean obliteration of the order originally passed and its substitution by a new order. Where the error is far from self-evident, it ceases to be an apparent error. An error which is apparent from record should be one which is not an error which depends for its discovery on elaborate arguments on questions of fact or law. 18. Principle underlying in the above quoted decisions, when analyzed based on the facts of the case at hand, it is evident that, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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