ORDER : T.Vinod Kumar, J. This Writ Petition is filed to declare the order of 1 st respondent dated 30-05-2005 to the extent of levying tax @ 8% on the material purchased from outside the State and utilized in execution of works contract as illegal, arbitrary and without jurisdiction. 2. Heard Sri Singam Srinivas Rao, learned counsel representing Sri S.Chakrapani, learned counsel for the petitioner and learned Special Standing Counsel appearing on behalf of respondents, and perused the record. 3. Briefly stated, the facts of the case of the petitioner are that, it is in the business of execution of works contract and opted to pay tax in terms of Section 5G of the Andhra Pradesh General Sales Tax Act, 1957 (for short ‘the Act’) by way of composition; that the 1 st respondent had granted permission to pay tax under Composition Scheme for the Assessment Year 2003-04 w.e.f. 01-04-2003 to 31-03-2004 by issuing Form–L1; and that the benefit of payment of tax under composition method has been renewed for a further period of one year upto 31-03-2005 by endorsement dated 22-04-2004. 4. It is the case of the petitioner that by virtue of permission granted by the 1 st respondent permitting the petitioner to pay tax under Composition Scheme, the petitioner would be required to pay tax @ 4% per square feet on plinth area constructed as against the applicable rate of tax on the goods used in the execution of works contract. 5. It is the further case of petitioner that, the officials of the Vigilance and Enforcement Department ( V& E), Government of Andhra Pradesh have caused inspection of petitioner premises on 25-08-2004 and verified the books of accounts; that the said officials during inspection, have pointed out that the petitioner is not entitled to include the value of material purchased from outside the State and used in execution of works contract under the Composite Scheme; and that the petitioner is required to pay sales tax @ 8% of such value of purchases made from outside the State under Section 5F of the Act. 6. Petitioner further contends that the officials of V&E Department have themselves estimated the value of such purchases made by the petitioner from outside of State to be Rs.70,36,204/- and directed the petitioner to pay tax on the aforesaid value of material, which has been arrived in a sum of Rs.4,55,132/-. 7. 6. Petitioner further contends that the officials of V&E Department have themselves estimated the value of such purchases made by the petitioner from outside of State to be Rs.70,36,204/- and directed the petitioner to pay tax on the aforesaid value of material, which has been arrived in a sum of Rs.4,55,132/-. 7. It is contended by the petitioner that on the officials of V&E Department holding that the petitioner is not entitled to include the value of material purchased from outside the State for paying tax under Composition Scheme as per the permission granted in Form-L1 under Section 5G of the Act, the petitioner had made the aforesaid payments, and based on the aforesaid payment made by petitioner, the 1 st respondent authority had passed the Assessment Order on 30-05-2005. 8. Petitioner contends that under bona fide belief of said determination made firstly by the V&E Department authorities of petitioner not being eligible to claim composition in respect of material purchased from outside the State and used in execution of works contract and secondly, the 1 st respondent passing the Assessment Order dated 30-05-2005 determining the tax due in a sum of Rs.5,62,896/-, remitted the tax and did not challenge the Assessment Order passed by the 1 st respondent by way of appeal under Section 19 of the Act or in a Writ Petition before this Court. 9. It is the further case of petitioner that while it had accepted the order of Assessment dated 30-05-2005, this Court in a Writ Petition filed by M/s.Maruthi Constructions Vs. The Government of Andhra Pradesh, rep. by its Special Chief Secretary, Revenue Department and another vide W.P.Nos.8853 and 8854 of 2006 by its common order dated 30-09-2006 held that Section 5G(4) of the Act to the extent it disentitles the Dealer from availing the benefit of composition in respect of goods purchased from outside the State and used in execution of works contract is violative of Article 14 and 301 of the Constitution of India and declared the said provision to the extent it disentitles the Dealer from availing the Composition Scheme in respect of purchases made from outside the State, to be unconstitutional. 10. 10. Petitioner further contends that on account of declaration of law by this Court in M/s.Maruthi Constructions (supra), the tax levied and collected from the petitioner by the 1 st respondent authority in terms of Assessment Order dated 30-05-2005 would be without sanction of law. 11. Petitioner further contends that since it was under bona fide impression that the authorities i.e. V&E Department as well as 1 st respondent would be levying tax in accordance with the provisions of the Act, it had paid the tax demanded under the Assessment Order dated 30-05-2005, and the respondent authorities have also collected the aforesaid tax from the petitioner under ‘mistake of law’. 12. It is also contended by the petitioner that since the levy of tax is declared as unconstitutional and impermissible in law, the petitioner is entitled to seek refund of the tax collected from it by the 1 st respondent authorities under ‘mistake of law’ on the principle of ‘restitution’ under Section 72 of the Indian Contract Act, 1872 and that the respondent authorities are obligated to refund the same. 13. In support of the aforesaid contention, reliance has been placed on the decision of the Apex Court in Mahabir Kishore & Others Vs. State of Madhya Pradesh , [78 STC page 404] 14. Counter-affidavit on behalf of 1 st respondent is filed. 15. By the counter-affidavit, it is contended that the order dated 30-05-2005 passed by the 1 st respondent on the petitioner herein for the assessment year 2003-04 under the Act has attained finality, inasmuch as the petitioner did not assail the said order either by filing first appeal in terms of Section 19 of the Act or by filing Writ Petition before this Court. 16. By the counter-affidavit, it is also contended that on the date when the order of assessment has been passed by the 1 st respondent, the levy of tax on the value of material purchased from outside the State and used in execution of works contract was valid and it is only by way of subsequent decision in the Writ Petition filed by the another Dealer, the said levy was held to be unconstitutional. 17. 17. By the counter-affidavit, it is contended that when the petitioner did not seek to challenge the assessment order passed in its case and allowed the said order to be come final, the petitioner cannot seek refund of tax paid by it based on the decision given in the case of another Dealer or to claim that the tax would become refundable on the ground of discovery of mistake of law. 18. By the counter-affidavit, it is also contended that the ratio laid down in Mahabir Kishore (supra) that the tax paid on mistake of law is refundable under Section 72 of the Indian Contract Act, 1872 has considerably been diluted by the Constitution Bench decision of consisting of 9 Judges of the Apex Court in Mafatlal Industries Ltd. and others Vs. Union of India and others , [ (1997) 5 SCC 536 ] . It is also contended that a Division Bench of this Court in Kanaka Durga Agro Oil Products Limited, Vijayawada Vs. Commercial Tax Officer, Vijayawada & Others , [(2000) 30 APSTJ 134.] , following the law laid down by the Apex Court in Mafatlal Industries Ltd (supra) and having regard to the provisions of Section 33-B of the Act, had held that a dealer is not entitled to seek refund of tax paid unless it establishes that the incidence of burden of tax is not passed on to the customer. 19. By the counter-affidavit, it is contended that since, the petitioner itself did not challenge the order of assessment dated 30-05-2005, the present Writ Petition filed after a lapse of more than 2 years seeking refund of tax paid claiming the same to be under mistake of law, cannot be allowed to claim refund. 20. We have taken note of respective contentions urged. 21. As per the provisions of the Act, if a dealer is aggrieved by any order of assessment passed by the assessing authority, it can avail the remedy of appeal provided under Section 19 of the Act or by filing Writ Petition under Article 226 of Constitution of India, if the same is without jurisdiction. 22. 21. As per the provisions of the Act, if a dealer is aggrieved by any order of assessment passed by the assessing authority, it can avail the remedy of appeal provided under Section 19 of the Act or by filing Writ Petition under Article 226 of Constitution of India, if the same is without jurisdiction. 22. Though, petitioner claims of it being under the belief that the officials of V&E Department, State of Andhra Pradesh as well as the 1 st respondent would be levying tax in accordance with law and as such, did not chose to assail the order of assessment dated 30-05-2005 under the bona fide impression that the said levy is correct, by itself goes to show that the petitioner at the relevant point of time had accepted the order of assessment and did not choose to assail the same either by filing appeal or filing Writ Petition before this Court. 23. It is, after this Court passing common order in W.P.Nos.8853 and 8854 of 2006 dated 30-09-2006, petitioner choose to file the present Writ Petition in July, 2007 after about 9 months thereafter claiming the petitioner as well as respondent No.1 were under ‘mistake of law’ in levying tax on the value of material purchased from outside of the State and used in execution of works contract, and the said value of goods purchased from outside the State being excluded from the Scheme of Composition opted by it under Section 5G(4) of the Act. 24. Though, the petitioner had claimed that since, levy of tax on material purchased from outside the State and used in execution of works contract has been declared to be unconstitutional by this Court, they being entitled to seek refund of the tax paid on the value of goods purchased from outside of the State and used in execution of works contract, it is to be noted that the petitioner at no point of time prior to filing of this Writ Petition has raised its little finger when the 1 st respondent had levied taxon it either by filing objection to the show cause notice or on the assessment order being passed or by availing the remedy of appeal. 25. Since, the petitioner did not choose to call in question the order of assessment dated 30-05-2005, the said order had attained finality. 26. 25. Since, the petitioner did not choose to call in question the order of assessment dated 30-05-2005, the said order had attained finality. 26. Though, petitioner had claimed that it is entitled to seek refund on the principle of ‘restitution’ in terms of Section 72 of the Indian Contract Act, 1872, the Hon’ble Supreme Court in Mafatlal Industries Ltd (supra) had observed as under: “86. That “the material resources of the community” are not confined to public resources but include all resources, natural and man-made, public and private owned” is repeatedly affirmed by this Court. (See Ranganatha Reddy [ (1977) 4 SCC 471 : (1978) 1 SCR 641 ] , Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal [ (1983) 1 SCC 147 : (1983) 1 SCR 1000 ] and State of T.N. v. L. Abu Kavur Bai [ (1984) 1 SCC 515 : (1984) 1 SCR 725 : AIR 1984 SC 326 ] . We are of the considered opinion that Shri Parasaran is right in saying that the philosophy and the core values of our Constitution must be kept in mind while understanding and applying the provisions of Article 265 of the Constitution of India and Section 72 of the Contract Act (containing as it does an equitable principle) — for that matter, in construing any other provision of the Constitution and the laws. Accordingly, we hold that even looked at from the constitutional angle, the right to refund of tax paid under an unconstitutional provision of law is not an absolute or an unconditional right. Similar is the position even if Article 265 can be invoked — we have held, it cannot be — for claiming refund of taxes collected by misinterpretation or misapplication of a provision of law, rules, notifications or regulation.” 27. Further, the Hon’ble Apex Court in the aforesaid decision also dealt with the issue relating to tax paid under mistake of law and levy or imposition being declared unconstitutional or illegal or unexigible in law and so found in a proceeding initiated not by the particular assessee, but in a proceeding initiated by some other assessee, either by the High Court or by the Supreme Court, as soon as the assessee come to know of the judgment, is required to initiate action for refund of the tax paid by it due to mistake of law within the period of limitation. 28. 28. The Apex Court, while holding as above, further held that the assessee seeking refund of the tax paid by him due to mistake of law should prove necessary ingredients to enable him to claim benefit under Section 72 of the Contract Act r/w Section 17 of the Limitation Act. 29. The Apex Court further put a word of caution by observing that in such cases “the assessee should prove the fundamental factor that he has not ‘passed on’ the tax to the consumer or thirdparty and that he suffered a loss or injury, and that the said aspect should not be lost sight of, in whatever manner, the proceeding is initiated – suit, Article 226 etc.” 30. The aforesaid principle laid down by the Apex Court has been followed by a Division Bench of this Court in Kanaka Durga Agro Oil Products Limited (supra) wherein this Court by applying the principle laid down by the Apex Court in Mafatlal Industries Ltd (supra) and having regard to the provisions of Section 33-BB of the Act held that the petitioner therein will not be entitled to refund of the tax. 31. If the position of law as enunciated by the Apex Court as well as Division Bench of this Court is applied to the facts of the present case, the petitioner in the Writ Petition did not mention as to when it had got knowledge of the order in M/s.Maruthi Constructions dated 30-09-2006 for it to seek refund of the tax paid claiming the same to be paid under ‘mistake of law’ or it has filed any appeal as per the statutory provisions. 32. Further, the petitioner in the affidavit filed before this Court did not mention as to whether the incidence of additional levy has been passed on by it, or has been absolved by it or whetherthe petitioner has not unjustly enriched itself or having suffered loss. 32. Further, the petitioner in the affidavit filed before this Court did not mention as to whether the incidence of additional levy has been passed on by it, or has been absolved by it or whetherthe petitioner has not unjustly enriched itself or having suffered loss. Since, the petitioner, as per the decision of the Apex Court in Mafatlal Industries Ltd (supra) as well as this Court in Kanaka Durga Agro Oil Products Limited (supra) failed to prove the aforesaid fact in order to seek refund, this Court is of the view that the petitioner by mere claiming that both itself and the 1 st respondent authority were under mistake of law while levying and paying tax and as such, it is entitled to seek refund by applying the principle of restitution under Section 72 of the Indian Contract Act, 1872, cannot be accepted as a valid claim. 33. For the aforesaid reasons, this Court is of the considered view that the Writ petition as filed is devoid of merit and it is accordingly, dismissed. No costs. 34. As a sequel, miscellaneous petitions pending if any shall stand closed.