JUDGMENT
A.P. Ravani, J.
1. The petitioner is manufacturing Sodium Silicate. The petitioner claimed refund of excise duty of Rs. 24,940.22 ps. (Rs. 24,760.41 ps. as basic duty plus Rs. 179.81 ps. special duty). It was contended by the petitioner that the base period for fixing clearance was year 1975-76 and the petitioner started manufacturing from May 1977. Therefore the clearance during 1976-77 was nil and hence for the clearance made during May 14, 1977 to March 31, 1978, petitioner claimed refund of the amount of extra duty paid on the ground that the petitioner was entitled to claim the benefits of exemption Notification No. 198/76, dated June 16, 1976.
2. The petitioner preferred the claim for refund on April 2, 1979. The said claim has been rejected by the Assistant Collector concerned as per order dated July 26, 1979. The petitioner has challenged the legality and validity of the aforesaid order passed by the Assistant Collector and has claimed that the respondents be directed to pay the amount of extra duty.
3. The order passed by the Assistant Collector produced at Annexure ‘D’ to the petition cannot be said to be in any way unjust or illegal. The authorities of the excise department are bound by the provisions of the Central Excises & Salt Act, 1944 and the rules framed thereunder. The refund claim was in respect of the period commencing from May 14, 1977 to March 31, 1978. Even if March 31, 1978 is taken as the last date of payment of the excise duty, the period of limitation (six months from the date of payment of the duty) would expire on September 30, 1978. In this case, the application for refund has been submitted on April 2, 1979. Thus evidently the application for refund has been submitted beyond the prescribed period of limitation. Therefore, the impugned order passed by the Assistant Collector concerned cannot be said to be in any way illegal, unjust or improper.
4. The learned counsel for the petitioner has submitted that the case of the petitioner has not been considered on merits by the Assistant Collector. Therefore he has submitted that this Court may examine the claim of refund on merits. As the Assistant Collector rejected the application on the ground of limitation he was not required to consider the application on merits. Even so, we are examining the merits. We have been taken through the Notification No. 198/76, dated June 16, 1976. There is nothing on record to show that the petitioner has complied with the conditions laid down in the notification and that the petitioner was entitled to claim exemption benefits flowing from the notification. Therefore, it cannot be said that even on the merits the petitioner has a good case and the case of the petitioner has been wrongly rejected.
5. The exemption Notification No. 198/76 dated June 16, 1976, which requires the fixation of the base period, pre-supposes that during the base period there would be some production. In the base period if there is no manufacturing activity whatsoever, such manufacturer would not be entitled to claim benefits of the notification saying that during the base period there was nil production and therefore for the clearance made in the subsequent years, he would be entitled to claim the benefits of notification. In the instant case, it is an admitted position that during the base period fixed by the Collector, the petitioner had not carried on any manufacturing activity at all. Therefore, even on merits the petitioner would not be entitled to claim the benefits of notification.
6. The learned counsel for the petitioner has submitted that the benefits of the exemption notification were available to the petitioner and therefore the department ought not to have recovered duty from the petitioner. It is submitted that the petitioner paid duty due to ignorance of law and therefore it is contended that the petitioner is entitled to seek the refund of the amount in question.
7. Ignorance of law cannot be equated with mistake of law. Ignorance of law and mistake of law are two different things. Erroneous belief or opinion about the state of things or about the provisions of the statute may be considered to be a mistake. While ignorance means lack of awareness. Even when a claim is to be based on mistake of law, the mistake is required to be common to both, i.e. to the recepient of the money as well as to payer of money. Moreover, the petitioner must aver and establish that the petitioner has suffered injury on account of the payment of excise duty due to mistake. If such injury is not suffered by the petitioner, the petitioner would not be entitled to claim restitution. The claim of restitution cannot be based merely on the ground that there is payment under mistake of law. Even after the mistake of law is established, it needs to be shown by the petitioner that on account of such mistake, he has suffered injury. If, in the facts of the case, it is found that on account of such mistake, someone else has suffered injury, the petitioner cannot claim restitution. In the instant case there is no averment as to the fact that the petitioner has suffered injury on account of the mistake and that if restitution is not granted there would be injustice to the petitioner. Therefore on this ground also, the petitioner has no case. There is no substance in the petition.
8. In the result the petition fails and the same is hereby rejected. Rule discharged.