( 1 ) THIS is a petition for issue of a writ of Mandamus for directing the refund of excise duty for an amount of Rs. 7,79,584. 96 collected by the Central Excise authorities from April, 1981 to 29-1-1983 declaring that the collection of duty under Tariff Item 3 (2) mentioned in the first Schedule of the Central Excises and Salt Act, 1944 as illegal, unconstitutional and ultra vires.

( 2 ) THE essential averments in the affidavit in support of the writ petition may be stated : The petitioner gets tea from M/s. Duncans Tea Sales Limited, Calcutta and puts the same into printed card board boxes/soft paper packs/printed envelopes and the boxes/packs/envelopes contain tea varying from 3 grams to 500 grams. After packing the tea as stated above they are delivered to M/s. Duncans Tea Sales Limited or their agents for subsequent disposal by them. The petitioner is a packer of tea supplied by M/s. Duncans Tea Sales Limited and for the discharge of this function the petitioner is paid amount as service charges. It is stated that the package tea falling under Central Excise Tariff Item 3 (2) and duty is being realised at 0. 40 per kg + 10% special excise duty on each packet weig