JUDGMENT 1. - Petitioner No. 1 is a Private Limited Company incorporated under the Indian Companies Act and petitioner No. 2 is a share holder. The Company has a number of industrial establishments at various places in India. The Company owns a unit, known as M/s. Shriram Rayons, Shriram Nagar, Kota, which manufactures tyre yarn cord and fabric. For the manufacture of rayon tyre yarn the Company is required to import wood-pulp from the United States of America as raw material. The wood pulp imported by the Company is not manufactured in India nor is any product, similar to tyre cold grade wood pulp or which could be used as a substitute for tyre cord grade wood pulp in the manufacture of Rayon Filament Yarn. manufactured in India It is a special type of wood pulp. It is entirely manufactured and exported from the United States of America. Even in the United States of America, there are only three man facturers of this kind of wood pulp. The petitioners imported cord grade wood pulp and paod additional duty viz. C.V.D. of Rs. 20,81,969.76/- in between November 27, 1979 and September 8, 1980. The petitioners were required to pay besides the customs duty, additional duty under section 3 (1) of the Customs Tariff Act, 1975. The articlies imported by them were transferred from Bombay to Kota and were stored in the private Customs Bonded Warehouse situated in the petitioner's factory premises. As the Company was granted facility of the Customs Bonded Warehouse license for the import of the wood pulp, it was removed from time to time from the Bonded Warehouse for home consumption in the petitioner's factory, Shriram Rayons, Kota. The clearance from the customs Bonded Warehouse used to he made by the petitioner No. 1 by filling Bill of Entry for home consumption under Section 68 of the Customs Act, 1962. The customs duty and the additional duty were charged on all the imports at the rate specified in the Schedule to the Customs Tariff Act, 1975 (hereinafter referred to as the 'Act'). 2. The case of the petitioner is that as the said product, namely, tyre cord grade wood pulp is not produced in India, it is not an excisable item tinder the Central Excise and Salt Act, 1944 (hereinafter referred to as 'The Excise Act'). 2. The case of the petitioner is that as the said product, namely, tyre cord grade wood pulp is not produced in India, it is not an excisable item tinder the Central Excise and Salt Act, 1944 (hereinafter referred to as 'The Excise Act'). The petitioners having come to know that the item was not subject to the levy of countervailing duty under the provisions of the Customs Act or the Tariff Act, they submitted the claim before the authority concerned for the amount paid by them between March 4, 1979 to November 29, 1979, the details of which have been mentioned in para No. 10 of the writ petition. The Asstt. Collector, Kota, Central Excise and Customs, Kota, rejected the aforesaid claim. He took the view that the amount realised from the petitioner was in accordance with the previsions of law and it was not necessary that tyre cord grade woodpulp should be manufactured in India before an additional duty equal to excise duty was levied on the imported woodpulp. Even if the rayon tyre cord woodpulp was not manufactured in India, the additional duty would be leviable on the woodpulp in question because the rayon tyre Cord grade woodpulp belonged to the class of description. known as woodpulp, manufactured in India. He also held that the goods in question could be validly classified and duty could be recovered as provided under the Tariff-item No. 68 of the Excise Act. 3. The petitioners by filing this writ petition have challenged their liability to pay the additional duty under section 3 (1) of the Act as also the insertion or inclusion of item No. 68 in the first Schedule to the Central Excise Act. 3. The petitioners by filing this writ petition have challenged their liability to pay the additional duty under section 3 (1) of the Act as also the insertion or inclusion of item No. 68 in the first Schedule to the Central Excise Act. They have accordingly prayed for the grant of the following reliefs:- (a) that the insertion and/or inclusion of item No. 68 in the First Schedule to the Central Excise and Salt Act, 1944 be declared unconstitutional, null and void, inoperative and not binding on them; (b) that the classification of tyre cord grade wood pulp as falling in Item 68 of the said Tariff Schedule by the Respondents be held illegal & contrary to law; (c) that no countervailing duty under Section 3 (1) of the Customs Tariff Act, 1975, should be held payable by the petitioners on the import of tyre cord grade wood pulp; (d) that a direction be issued prohibiting respondents from collecting or imposing countervailing duty on the import of tyre cord grade wood pulp; (e) that the order, dated 28-2-1980, passed by the respondent No. 2 be queshed; and (f) that a writ, direction or order in the nature of Mandamus and/or any other similar writ, direction or order calling upon and/or commanding the respondents to refund the amount recovered by them as countervailing duty as per details mentioned in the annexure to the writ petition with 12% interest per annum from the date of recovery till the date of payment, be made. 4. The Union of India has filed its return, controverting the averments made by the petitioner in the writ petition. It has been mentioned therein that the wood pulp used in the manufacture of goods, rayon tyre yarn cord fabric, mentioned in para 2 of the writ petition, is available in India and in case the petitioner imported tyre cord wood pulp as special type of wood pulp, the answering respondent was not concerned. It was for the petitioner to chose whether they used the local product or special type of goods for manufacturing their products. It was for the petitioner to chose whether they used the local product or special type of goods for manufacturing their products. The explanation of Section 3 of the Act makes it abundantly clear that the imported goods were subject to payment of duty even if like goods were not manufactured in India, provided that such imported item was classifiable under any item of the Central Excise Tariff and that the petitioners were not entitled to any refund. Inclusion of Tariff-item 68 in the Excise and salt Act, 1944 has been made by the competent legislature i. e. Parliament. The said tariff-item was neither unconstitutional nor illegal nor inoperative nor violative of Articles 14. 19 and 21 of the Constitution. 5. We have heard rival contentions raised by the parties. The first and foremost contention of the learned counsel for the petitioner is that section 3 of the Custom Tariff Act, 1975, provides for levy of additional duty on imported article to counterbalance the excise duty leviable on the like articles made indigenuously or on the indigenous raw materials component or ingredients which go into the making of like indigenous article. This proviso has been introduced to safeguard the interest of the manufacturers in India, as tyre cord grade wood pulp is not manufactured in India nor is any product similar to tyre Cord grade wood pulp which could be used as substitute in the manufacture of rayon filament yarn, manufactured in India. That being the position, the additional duty leviable under the Customs Tariff Act, 1975 is not recoverable from the petitioners by the respondents. In support of this contention, the petitioners have placed reliance on Annexure 2 Supplement to Guidelines for Industries 1979-80 Part II, scope and prospects, Government of India publication, wherein in item "160 RAYON GRADE PULP", at point 1-4, it has been mentioned as under: "The requirements of Rayons Grade Pulp for staple fibre are met in full from indigenous production; for filament yarn partially. As long fibred pulp required for the production of rayon type cord is not manufactured indigenously, the requirements of such pulp are being met through imports." Learned counsel urges that excisable goods have been defined under Section 2 (d) of the Central Excise and Salt Act, 1944. As long fibred pulp required for the production of rayon type cord is not manufactured indigenously, the requirements of such pulp are being met through imports." Learned counsel urges that excisable goods have been defined under Section 2 (d) of the Central Excise and Salt Act, 1944. Section 3 of this Act provides that there shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India. Sub-section (2) of the same section provides that the Central Government may, by notification in the official gezette, fix for the purpose of levying the said duty tariff values of any article enumerated either specifically or under general headings in the first schedule as chargeable duty ad velorem and may alter any tariff value for the time being in force. A careful reading of the above section of the Central Excise Act with Section 3 of the Customs Tariff Act, 1975, clearly indicates that the additional duty is to be recovered on the items imported into India, provided like items are manufactured in India and on which central excise duty is payable. At the first sight the argument appears to be attractive, but it fails to take notice of the explanation to Section 3 of the Customs Tariff Act, 1975. Section 3, with its explanation, reads as under: "3. Levy of additional duty equal to excise duty -- (1) Any article which is imported into India shall, in addition, be liable to a duty (hereinafter in this section referred to as the additional duty) equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation - In this section, the expression "the excise duty for the time being leviable on a like article if produced or manufactured in India" means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured, which would be leviable or to a class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. (2) .... .... (3) .... .... (4) .... .... (5) .... .... (6) .... .... 6. The first Schedule to the Tariff enumerates the article on which duty is payable upon import by way of import tariff. Section 12 of the Customs Act provides that the customs duty shall be levied under the Customs Tariff Act or any other law for the time being in force on the goods imported into, or exported from India. Thus under Section 2 of the Indian Tariff Act, read with Section 12 of the Customs Act, 1962, customs duty is payable on the importation of goods into India at the rates specified in the Schedule to section 2 of the Tariff Act. Under Section 3 of the Tariff Act, an additional duty on the import of goods is levied. In the case on hand there is no dispute as regards the liability of the petitioner Company to pay customs duty at pro rata specified in the Schedule to the Tariff Act as provided in Section 2 thereof, read with Section 12 of the Customs Act. The dispute centres round whether additional duty under Section 3 on the same article on the basis, embodied in the said provision, is valid. In other words what is disputed is whether such additional duty is payable if the like article is manufactured in India. The petitioner Company contends that having regard to the well accepted meaning of the expression 'additional duty; as mentioned in section 3. The expression cannot but refer to a duty in respect of importation of articles when like articles are actually manufactured or produced in India. In case similar articles or like articles are not actually manufactured or produced in India, additional duty cannot be levied thereon having regard to the meaning and content of the expression 'additional duty'. The expression cannot but refer to a duty in respect of importation of articles when like articles are actually manufactured or produced in India. In case similar articles or like articles are not actually manufactured or produced in India, additional duty cannot be levied thereon having regard to the meaning and content of the expression 'additional duty'. This argument urged on behalf of the petitioner overlooks and ignores an important circumstance that Section 3 contains a definition clause impleaded in the explanation which in turn makes it abundantly apparent whether or not the article in question is actually manufactured or produced in India, is not relevant consideration. In other words, the expression "additional duty" has been employed in a special sense and is required to be interpreted as under : "(1) Additional import duty shall be payable over and above the duty payable under section 2. (2) such duty will be equal to the excise duty for the time being is leviable on a like article whether or not it is produced or manufactured in India. (3) In case it is produced or manufactured in India, the duty shall be equivalent to the duty payable on such article in India under the relevant Excise provision. (4) In case the article is not so produced, it will be leviable on the class or description of articles to which the imported article belongs." 7. It is, thus, virtually impossible to hold that additional duty can be levied only when similar article is manufactured or produced in India or that the manufacture or production of the article in question in India is a condition precedent to the valid levy of additional duty. It should be realised that what is being imposed is not excise duty but import duty, named as additional duty, at a rate equivalent to the rate at which excise duty is payable. It is only for the purpose of finding out measure of duty or the rate of duty that a reference has to be made to the relevant entry or item of the Excise Act. If a like article is actually produced or manufactured in India, duty would be leviable at a rate equivalent to the rate of excise duty for the time being leviable on a like article. If a like article is actually produced or manufactured in India, duty would be leviable at a rate equivalent to the rate of excise duty for the time being leviable on a like article. If a like article is not so produced or manufactured, then the duty would be leviable under the Excise Act on the class or description of articles to which they belong. In view of the explicit provision nude by section 3, read with Explanation clause, it is not possible for us to accept the contention that additional duty cannot be levied if the article or a like article is not actually manufactured in India at the time of importation of the goods in question. We cannot close our eyes to the definition implanted in the Explanation part of Section 3, merely because the expression "additional duty" in some other Act or in some other context has been construed in a different light. A perusal of the letter, dated March 22, 1982, of the Andhra Pradesh Rayons Ltd. and sent to M/s. Shriram Rayons. Akash Deep. Barakhambha Road, P.B. No. 445, New Delhi - 110001 , produced by the petitioner, shows that the wood pulp manufactured in India meets the requirements of the petitioner and is used for blending with imported pulp so as to bring the cost of production down and thus imported wood pulp falls within the class or description of the like article produced in India and stands covered by Explanation to Section 3 of the Indian Customs Tariff Act. 1975. In this view of the matter we stand supported by a judgement of Delhi High Court in H K. Leach and Company v. Union of India & Anr., 1981 E.L.T. 182, wherein section 2A of the Indian Tariff Act, 1934, as amended by the Act of 1963, came up for interpretation. The language of Section 2A of the Act is para materia to the language of Section 3 and its Explanation. The petitioners in that case imported lubricating oil from abroad. The case of the petitioners was that the kind of imported oil was such which was neither manufactured, nor prepared in India and as such they were entitled to the refund of the additional duty and countervailing duty paid by them. The petitioners in that case imported lubricating oil from abroad. The case of the petitioners was that the kind of imported oil was such which was neither manufactured, nor prepared in India and as such they were entitled to the refund of the additional duty and countervailing duty paid by them. His Lordship of Delhi High Court observed: "Even though the lubricating oils identical to the one imported by the petitioner are not manufactured in India, the lubricating oils of too low qualities, thin spindle oils, B.O.C. 40 and 50 are manufactured in India. Additional excise duty is leviable on the class of marks to which the imported articles belongs." We respectfully agree with the above line of reasoning and hold that additional duty is leviable on the 'wood pulp' imported by the petitioner. 8. The next contention raised by the learned counsel for the petitioner is that inclusion or addition of Entry 68 to the First Schedule to the Central Excise and Salt Act, 1944, void being violative of Articles 14, 19 and 21 of the Constitution. Learned counsel contends that the provisions of the Central Excise and Salt Act, 1944, is clearly and by express intendment enjoins that the Schedule has to contain with definite specification, the items of excisable goods. In Section 2(d) of the Central Excise and Salt Act, 1944, the term 'excisable goods' is defined to mean such goods which are specified in the first schedule and Section 3 (1), which is the charging section, states that duties of excise are levied on excisable goods. The term 'goods' by itself has not been defined. Therefore, it appears to be the clear intention of the Legislature that there should be sufficient description with regard to the item of goods which are subject to excise duty. Introduction of general entries, like the one as entry No. 68, amounts to giving unbriddled power in the hands of the executive. The entry embraces universally, "all other goods" which is too wide and too general without any descriptive details. The purpose of Central Excise and Salt Act, 1944, is to earn revenue. It is necessary to classify the substance of the manufactured articles in accordance with the terms generally known to the commercial world. The entry embraces universally, "all other goods" which is too wide and too general without any descriptive details. The purpose of Central Excise and Salt Act, 1944, is to earn revenue. It is necessary to classify the substance of the manufactured articles in accordance with the terms generally known to the commercial world. General entries in such a field, though called "residuary entries", are bound to create discrimination and it will depend upon the will and caprice of the officer to classify a particular article within the scope of entry No. 68. We find ourselves in difficulty to agree with the above noted contentions for the following reasons. 9. First of all we would like to observe that it is for the petitioner who challenges the validity of a particular entry to state proper facts with sufficient details, so that the Court may examine the pleadings in respect of validity and arrive at an appropriate decision. In a case like this pleadings are of vital importance. If there is no mention of necessary facts in a petition for the redress of grievances, the petitioners have to thank themselves for their ultimate discomforts. In the case on hand the petitioners have simply mentioned in Para 17 (1) that inclusion of Tariff-item 68 of the Central Excise and Salt Act, is by itself unconstitutional, illegal and inoperative, because there are no guidelines in the Act to canalise the administrative incorporation in the first Schedule by an administrative fiat as to what commodities would be or would not be included within the ambit of the aforesaid item 68 of the Central Excise and Salt Act. In sub-clause (ii) it has further been averred that item 68 confers upon the administrative authority absolute powers of interpretation at their whims or caprice as to what or what ought not to be treated as a commodity falling within the said item. The petitioners have failed to mention as to how the above entry is discriminatory and which provision of law discriminates which class of the businessmen or society. In the absence of sufficient material and pleas on bare submission that the entry is violative of Articles 14, 19 and 21, the entry cannot be struck down. The petitioners have failed to mention as to how the above entry is discriminatory and which provision of law discriminates which class of the businessmen or society. In the absence of sufficient material and pleas on bare submission that the entry is violative of Articles 14, 19 and 21, the entry cannot be struck down. We would like to observe that there is a presumption in favour of a validity of an Act of a legislature and heavy burden lies upon the person, who attacks it to show that there has been a clear transgression of any provision of law or Constitution. A close reading of item 68 mentioned in Schedule I to the Central Excise and Salt Act, 1944, with Section 3 of the same Act indicates that the Legislature intended to collect the prescribed duties of excise on all articles which are produced or manufactured in India, except salt, at the rates setforth in the first Schedule. Provision of Section 3 of the Customs Tariff Act, 1975, makes it clear that what is imposed is not excise duty, but an import duty named as additional duty at a rate equivalent to the rate at which excise is payable. It is only for the purpose of finding out measures of duty or the rate of duty that a reference has been made to the relevant entry or item of the Excise Act. If a like article is actually produced or manufactured in India, the duty would be leviable at the rate equivalent to the rate of excise duty for the time being leviable on a like article. If a like article is not so produced or manufactured, then duty would be leviable under the Excise Act on the class or description of article to which the article belongs. The parliamentary intention is clear and nothing has been left to the caprice and whim of an executive officer. It is primarily for the import control authorities (or customs authorities) to determine the head or entry in tariff Schedule under which any particular commodity falls, but if in doing so those authorities adopt a construction which no reasonable person could adopt i. e., if the construction is perverse, then it is a case in which the court is competent to interfere. But simply on the ground that some officer may misinterpret a particular entry, the validity of an entry cannot be challenged. 10. As far as taxing statutes are concerned, if there were to constructions, which an entry could reasonably bear and one of them, which is in favour of the Revenue, is adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt, (2) AIR 1963 Supreme Court 1319. Thus the classification of tyre wood pulp as falling under item to the First Schedule to the Central Excise and Salt Act, 1944 cannot be said to be illegal. 11. Now we come to the question of refund : Power to give relief under Article 226 is a discretionary one. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of such a discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Where a person comes to the Court for relief under Article 226 of the Constitution, on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, if it finds that the assessment was void being made under a void provision of law and the payment was made by mistake is not bound to exercise its discretion for issuance of direction for repayment. Whether repayment should be ordered in the exercise of such discretion will depend in each case on its own facts and circumstances. It may, however, he stated as a general rule that if there has been an unreasonable delay, the Court ought not ordinarily lend its aid to a party by this extraordinary remedy of mandamus. 12. It is a settled law that, except in case where the delay is duly accounted for, mandamus will not be granted unless applied for, within a reasonable time after the demand and refusal to do the act, vide Broughton v. Stamp Duty Commissioner and Halsbury's Laws of England, Vol. 11 page 73, Third edition. 12. It is a settled law that, except in case where the delay is duly accounted for, mandamus will not be granted unless applied for, within a reasonable time after the demand and refusal to do the act, vide Broughton v. Stamp Duty Commissioner and Halsbury's Laws of England, Vol. 11 page 73, Third edition. Again where even if there is no such delay, the Government or the statutory authority, against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the ground like limitation, the court should ordinarily refuse to issue the writ of mandamus for such payment. Sections 12 and 27 of the Customs Act, 1962, read with section 3 of the Customs Tariff Act, 1975 and item No. 68 of the Schedule to the Central Excise and Salt Act, clearly indicate that it is open to the State Government to raise the plea of limitation as well as raise arguable issues both regarding facts and law relating to the maintainability of be claim of the petitioner and as such it would be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action under the customs Act, 1962, or in a civil court and to refuse to exercise in his favour e extraordinary remedy under Article 226 of the Constitution. 13. This conclusion stands fully supported by a decision of their Lord hips of the Supreme Court, reported in State of Madhya Pradesh v. Bhilai Chai AIR 1964 SC 1006 , wherein the writ petition for refund of amount was dismissed on the above noted two grounds even though the tax recovered in that case was held to be illegal. In another case the writ petition, regarding refund of illegal assessment, filed by Raja Jagdambika Pratap Narain Singh, before the Allahabad High Court, was dismissed and the appeal filed before the Supreme Court was also dismissed on similar grounds vide Raja Jagdembika Pratap Narain Singh v. Central Board of Direct Taxes and others, AIR 1975 SC 1816 . The Customs Act is a self contained Code. There is a complete and precise scheme for recovery of the tax, for regulating the recovery procedure and far its refund. The Customs Act is a self contained Code. There is a complete and precise scheme for recovery of the tax, for regulating the recovery procedure and far its refund. It also prescribes remedies for redress of grievences or for the correction of errors if any and it is to these remedies that resort must generally be made. The Court will, as a general rule, and in the exercise of its discretion, refuse an order of mandamus when there is an alternative specific remedy at law, which is not less convenient, beneficial and effective Stepeny Brought Council v. John Walker (1934) A.C. 365 H.L. at page 385 . In other words, remedy by mandamus will not be available when a specific remedy is given in the Act itself. Pasmore v. Coswaldtwistle Wrhan Council (1898) A.C. 387 H.L. The authorities concerned under the law can also enquire into the facts and take additional evidence. For all these reasons, we are firmly of opinion that interference in this case under Article 226 of the Constitution at this stage is not called for. 14. Even otherwise a question does arise whether in the facts and circumstances of the case an order could be passed for refund of additional duty in favour of the petitioner. Our answer to it is in the negative The petitioner, while fixing the sale price for reyon tyre cord ai d fabric, must have taken into consideration. (i) the cost price of the woodpulp. (ii) import duty, (iii) customs duty and the additional duty or countervailing duty, (iv) manufacture's cost and (v) manufacture's profit. It is not the petitioner's case that the additional duty of has not been included in the cost structure of the rayon tyre-cord or fabric, while passing the goods to the purchaser. In case of refund of illegally levied customs duty on raw material it should in all fairness normally belong to the customers of the finished products. In between the period the woopulp was removed and filing of writ petition, reyon tyre cord and fabric manufactured from the woodrulp must have been passed over to the purchaser of tyre cord. Thus, the refund if allowed will lead to illegal enrichment of the petitioner, which is not entitled to retain the amount as the same has already been recovered by the party when rayon or fabric had been sold. Thus, the refund if allowed will lead to illegal enrichment of the petitioner, which is not entitled to retain the amount as the same has already been recovered by the party when rayon or fabric had been sold. A writ cannot be issued in favour of the parties to unjustly enrich them, though they are not entitled to that sum in equity. Reference in this connection may be made with advantage to the decision of their Lordships of the Supreme Court in M/s. L.M. Sugar Factories and Oil Mills v. Union of India (Special Leave petition No. 1330 of 1975, decided on 10-7-1975). 15. For the reasons mentioned above, this writ petition is dismissed with costs of Rs. 400/- to the respondent.Petition dismissed. *******