Rectification cannot reopen a concluded appeal when later case law merely changes the legal position under excise law.

A challenge to a final appellate order was held maintainable even though the assessee had not separately appealed an earlier recall order, because the legality of an antecedent procedural order could be questioned in an appeal against the final order passed pursuant to it. Rectification under Section 35C(2) of the Central Excise Act was confined to a patent mistake apparent from the record, and a later Supreme Court decision could not be treated as such a mistake merely because it changed or clarified the law. The rectification power could not be used to reopen a concluded appeal or substitute a fresh merits decision. The Tribunal's reopening was unsustainable and the original appellate order was restored.

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Issues: (i) Whether the assessee could challenge the final order in appeal without separately challenging the earlier order allowing rectification of mistake and recalling the original appellate order; (ii) Whether a subsequent decision of the Supreme Court could be treated as a mistake apparent from the record so as to justify reopening a concluded appeal under Section 35C(2) of the Central Excise Act, 1944.

Issue (i): Whether the assessee could challenge the final order in appeal without separately challenging the earlier order allowing rectification of mistake and recalling the original appellate order.

Analysis: The right of appeal under Section 35G of the Central Excise Act, 1944 was treated as wide enough to permit the appellant to question the legality of the later final order, including the legality of the recall of the earlier order. The governing principle drawn from Section 105(2) of the Code of Civil Procedure, 1908, as made applicable by Section 35G(9) of the Central Excise Act, 1944, was that an interlocutory or antecedent procedural order need not be independently appealed where the grievance can be raised against the final order passed pursuant to it.

Conclusion: The challenge was held maintainable, and the assessee was entitled to assail the legality of the recall while questioning the final order.

Issue (ii): Whether a subsequent decision of the Supreme Court could be treated as a mistake apparent from the record so as to justify reopening a concluded appeal under Section 35C(2) of the Central Excise Act, 1944.

Analysis: Rectification under Section 35C(2) was confined to a patent and obvious mistake apparent from the record. A later judicial pronouncement changing or clarifying the law was treated as a change of opinion, not as an apparent error. The power of rectification could not be used to reopen a concluded appeal or to substitute a fresh merits decision for an order that had already attained finality between the parties.

Conclusion: The subsequent decision of the Supreme Court was held not to constitute a mistake apparent from the record, and the Tribunal's reopening of the concluded appeal was ruled unsustainable.

Final Conclusion: The appeal succeeded, the impugned order of the Tribunal was set aside, and the original appellate order was restored.

Ratio Decidendi: A later judicial declaration of law does not by itself amount to a mistake apparent from the record for rectification purposes, and the rectification power cannot be used to reopen and decide afresh a concluded matter that has already attained finality.

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