Page 178 - ELT_1st June 2020_VOL 372_Part 5th

712 EXCISE LAW TIMES [ Vol. 372

tena 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 ascer-
tained 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. The above principle is evolved from
the decisions of the Apex Court in The Income Tax Officer v. The Asok Textiles Ltd.,
(1961) 41 ITR 732 (SC), T.S. Balaram v. Volkart Brothers, Bombay, (1971) 82 ITR 50
(SC). Therefore it is contended by Learned Counsel for the appellant that a sub-
sequent 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 re-
spect, he placed reliance on a decision of the Apex Court in Assistant Commission-
er, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange Ltd. [2008 (230) E.L.T. 385
(S.C.)]. He also placed reliance on a decision of the High Court of Gujarat in
Suhrid Geigy Ltd. v. Commissioner of Surtax [1999 (237) ITR 834 (Guj.)].
12. It is always a sound principle that the Courts while pronouncing a
judgment is not creating a new Rule. Nor it does not make law; but only declare
the correct position of law. In that respect it has to be accepted that a judicial de-
cision acts on retrospective basis. But the question mooted for decision is wheth-
er a subsequent judicial decision settling the correct interpretation of law, which
unsettles the earlier precedents, can be considered as a mistake apparent on the
face of record, which enables rectification of an earlier decision which had at-
tained finality between parties inter se. In other words, whether a change of opin-
ion declared in a subsequent judicial decision can be treated as a mistake appar-
ent on the face of record to unsettle a decision which had attained finality. Fur-
ther, it is a question as to whether such subsequent change of opinion will enable
the authority to reopen the settled proceedings and to decide it afresh.
13. In this regard Learned Counsel for the appellant had cited a deci-
sion of the Hon’ble Supreme Court in Commissioner of Central Excise, Calcutta v.
ASCU Ltd., Calcutta [2003 (151) E.L.T. 481 (S.C.)]. After referring various prece-
dents it was held that a mistake apparent on the face of the record must be an
obvious and patent mistake and cannot be something which would have to be
established by long drawn process of reasoning on points which there may con-
ceivably be two opinions. A decision on a debatable point of law cannot be a
“mistake apparent from the record”. As such it is held that, the scope of correc-
tion which can be made by the Tribunal under Section 35C(2) is limited. Un-
doubtedly, if a decision is based solely on material which is irregular or which
could not have been used, then possibly it could be said that there is a mistake
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