Mistake apparent from the record cannot justify rectification where the penalty-exclusion plea was never raised earlier.

Rectification of a final order sustaining penalty under Section 11AC of the Central Excise Act was refused because the claimed error was not a mistake apparent from the record. The plea that payment of duty before issuance of the show cause notice excluded penalty had not been raised in the reply to the notice or in the appeal against the Commissioner's order, so it was outside the material considered in the final order. A patent error cannot be established by a long-drawn process of reasoning. The request to disturb the penalty finding therefore failed.

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Issues: Whether the final order suffered from any mistake apparent from the record in sustaining penalty under Section 11AC of the Central Excise Act, 1944, so as to warrant rectification.

Analysis: The application sought recall of the earlier final order on the ground that payment of duty before issuance of the show cause notice excluded penalty under Section 11AC. It was found that this specific plea had not been raised in the reply to the show cause notice or in the appeal against the Commissioner's order. The challenge therefore was not part of the record when the final order was made. A mistake apparent from the record must be obvious and patent, and cannot be established by a long-drawn process of reasoning. The claimed error was thus outside the scope of rectification.

Conclusion: The alleged mistake was not established as a mistake apparent from the record, and the request to disturb the penalty finding failed.

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