TMI Blog1966 (9) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... the firm was a licensed Excise contractor with its principal office at Bangalore, and that it had been the licensee of the Bangalore Urban group of 26 shops for the year July 1, 1963 to June 30, 1964. The petitioner continued to be the licensee for the same group of shops with five more new shops to be opened for two more years, viz., 1964-65 and 1965-66. The petitioner paid shop rent or the 'kist' for this group of toddy shops amounting to ₹ 3,61,116 a month during the year 1963-64 and ₹ 4,41,216 a month for the next two years. This kist amount was determined at the tender-cum-auction sale of the exclusive privilege of vending toddy in the shops of this group during the relevant period. The petitioner paid amount equal to two months kist as initial and security deposit for each of these years. It was further stated that notice was given under the notification, dated April 20, 1963, that the exclusive privilege of selling country liquors during the twelve months, beginning from July 1, 1963, and ending with June 30, 1964, in the shops or groups of shops specified in Schedules I and II of the notifications, situated in the district of Bangalore will be disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res on various grounds which need not be mentioned at this stage. The petitioner claimed the following reliefs:- (a) to declare that the State of Mysore has no authority to levy and collect 'health cess under the Mysore Health Cess Act 1962, and its predecessor Act of 1951 on shop-rent, tree-tax, tree-rent or any other item of revenue payable by the petitioner in respect of its business in toddy (b) to issue a writ, order or direction quashing condition No. 18 in the notification dated April 27, 1964, which relates to the levy of health cess on their business of toddy; (c ) to issue a writ of prohibition or order or direction in the nature of a writ restraining all or any of the respondents from enforcing the above impugned condition or by any other similar demand for payment of health cess under the Health Cess Act, and (d) to issue a writ of mandamus directing refund of health cess illegally collected from the position or any other consequential order and direction as may meet the ends of justice. for refund of Health Cess already collected under the provisions of the Health Cess Act of 1962 and 1951 in respect of toddy. 6. We may mention that before the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S 3 as follows (22) exercise duty and ''countervailing duty mean any such excise duty or countervailing duty, as the case may be, as is mentioned in Item 40 of List II in the Seventh Schedule to the Government of India Act, 1985. ** ** We have seen various Acts which were in force in some of the erstwhile provinces of British India and similar definition was inserted in all these Acts; e.g. (1) The Punjab Excise Act (Punjab Act 1 of 1914). (2) The Bombay Abkari Act (Bombay Act V of 1878). (3)The Bengal Excise Act (Bengal Act V of 1909). (4) The United Provinces Excise Act (U. P. Act VI of 1910). But the definition of 'abkari-revenue continued to exist in the Madras Abkari Act even after the Adaptation of Indian Laws Order 1937. Clause (14) of S. 3 of the Mysore Excise Act defined sale or selling as including any transfer other-wise than by way, of gift Clause (18) denied ''manufacture as including every process, whether natural or artificial, by which any fermented, spirituous or intoxicating liquor or intoxicating drug is produced or prepared and also re-distillation and every process for the rectification of liquor. Section 12 provides as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and intoxicating drugs- (a) permitted to be imported under S. 6: or (b) permitted to be exported under S. 7, or (c) manufactured under any licence granted under S. 12; or (d) manufactured at any distillery established under S. 14 or (e) permitted under S. 11 to be transported: or (ee) issued from a distillery or warehouse licensed or established under S. 12 or S. 14: or (f) sold in any part of Mysore of such amount as the Government may, from time to time, prescribe. l8. Such duty may be levied in one or more of the following ways :- (a) by duty of excise to be changed in the case of' spirits or beer either on the quantity produced in or passed out of a distillery, brewery or warehouse licensed or established under S. 12 or S. 14 as the case may be, or in accordance with such scale of equivalents, calculated on the quantity of materials used or by the degree of attenuation of the wash or wort, as the case may be as the Government may prescribe: (b) in the case of intoxicating drugs, by a duty to be rateably charged on the quantity produced or manufactured or sold by wholesale or issued from a warehouse licensed or established under S. 14; (c) b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 reads as follows :- For the supply of toddy to his shops, the licensee shall have the privilege of obtaining subject to tree-tax rules, toddy yielding trees in the groves assigned to his shops or groups, of shops and he shall be at liberty to manufacture toddy from the trees in private lands under private arrangements, between himself and the owners of such lands. Condition No. 2 further enables the Deputy Commissioner to refuse to grant license for tapping certain trees. Licensees are entitled to purchase toddy from any licensed toddy shopkeeper on application to the Inspector or Assistant Inspector who will grant the required permits on proof of the necessity for the same in certain cases. Condition No. 4 reads as follows- The licensee shall be responsible to Government for all payments of instalments of fees due on account of tree-tapping licenses granted on his application in his own name or in the names of his nominees under the conditions set forth therein and in the rules relating thereto. Condition No. 7 provides for tree rent at Re. 0-8-0 per tree on Government trees sought to be tapped. Condition No. 8 prescribes conditions for tapping the trees Conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and collected a health cess at the rate of nine naye paise in the rupee on,- (i) all items of land revenue; (ii) the items of State Revenue mentioned in Schedule A: and (iii) the items of taxes mentioned in Schedule B levied under any law for the time being in force by a local authority. Section 4 reads thus: 4. Recovery of health cess.-The health cess payable under S. 3 shall be levied, assessed and recovered along with the items of land revenue, State revenue or tax on which such cess is levied, and the provisions of the law and the rules, orders and notifications made or issued thereunder for the time being in force, shall apply to the levy, assessment and recovery of the health cess as they apply in respect of the levy, assessment and recovery of the said items of land revenue, State revenue or tax. We are concerned with S. 3 (ii), i.e., items of State revenue mentioned in Sch. A, and these items in Sch. A are as follows:- SCHEDULE A 1. Duties of excise leviable by the State under any law for the time being in force in any area of the State, on the following goods manufactured or produced in the State and countervailing duties levied on similar goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t II which enable it to levy land revenue or the duties of excise, or the other taxes mentioned in S. 3 (iii) of the impugned Act. 15. This takes us to the second point raised by the learned counsel. He says that the shop rent is not a duty of excise and does not fall within Entry 51 of List II, or Sch. A of the Act. We have already mentioned that he has conceded that the tree-tax is an excise duty and we need not consider the question of tree-tax at all. His argument in brief is as follows: The duty of excise is primarily a duty levied on manufacture or production of goods, the taxable event being the manufacture or production. He says that the taxable event in this case is not manufacture or production. He further says that the shop rent is the price given by the petitioner for the privilege of selling toddy, i.e., for the privilege of carrying on a business. This privilege of selling, he says, had no relation to production or manufacture of toddy because the production or manufacture of toddy was complete before the petitioner started to sell toddy in his shops. He further says that the petitioner pays tree-tax which is an excise duty. He also contrasts the language of Ss. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anufacture of goods produced or manufactured within the country. It is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, its ultimate incidence will always be on the consumer. Therefore, subject always to the legislative competence of the taxing authority, the said tax can be levied at a convenient stage so long as the character of the impost, that is, it is a duty on the manufacture or production, is not lost. The method of collection does not affect the essence of the duty, but only relates to the machinery of collection for administrative convenience. Whether in a particular case the tax ceases to be in essence an excise duty, and the rational connection between the duty and the person on whom it is imposed ceased to exist, is to be decided on a fair construction of the provisions of a particular Act. 20. Sinha, C.J., speaking for the Full Court in In re Bill to amend S. 20 of the Sea Customs Act, 1878, etc., 1964-3 SCR 787: (AIR 1963 SC 1760), quoted with approval the passage set out above and added: This will show that the taxable event in the case of duties of excise is the manufacture of goods and the duty is not directl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is difficult to see how the State can fix countervailing duties at the same or lower rates unless the rate of excise as such is known or can be ascertained. Similarly, S. 64-A of the Indian Sale of Goods Act, 1930, contemplates a uniformity of incidence and reads thus: 64-A. In contracts of sale amount of increased or decreased duty to be added or deducted. In the event of any duty of customs or excise on any goods being imposed, increased, decreased or remitted after the making of any contract for the sale of such goods without stipulation as to the payment of duty where duty was not chargeable at the time of the making of the contract, or for the sale of such goods duty paid where duty was chargeable at that time:- (a) if such imposition or increase so takes effect that the duty or increased duty, as the case may be, or any part thereof, is paid the seller may add so much to the contract price as will be equivalent to the amount paid in respect of such duty or increase of duty, and he shall be entitled to be paid and to sue for and recover such addition, and (b) if such decrease or remission so takes effect that the decreased duty only or no duty, as the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nthly, the privilege of selling is auctioned well before the goods come into existence. In this case it would be noticed that the second notification, dated April 27, 1964, was for the sale during the next two years. 23. In view of these characteristics, can it be said to be an excise duty? In our opinion the answer is in the negative. The taxable event is not the manufacture or production of goods but the acceptance of the license to sell. In other words, the levy is in respect of the business of carrying on the sale of toddy. There is no connection of any part of the levy with any manufacture or production of any goods. To accept the contention of the State would mean expanding the definition of excise duty to include a levy which has close relation to the sale of excisable goods. It is now too late in the day to do so. 24. Our conclusion is supported by the observations of Gwyer, C.J. in 1939 FCR 18 at p. 54: (AIR 1939 FC 1 at p.12): But here again after examining various provincial Acts relating to the control of alcohol, I have been unable to find any case of excise duties payable otherwise than by the producers or manufactures or persons corresponding to them. I a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court of Australia, by majority, held that S. 19 (1) (a) of the Licensing Act, 1958 (Vic.) which imposed fees for a Victualler's licence calculated at equal to the sum of six per centum of the gross amount (including any duties thereon) paid or payable for all liquors which during the 12 months ended on the last day of June preceding the date of application for the grant or renewal of the licence was purchased for the premises was valid as it did not impose any excise duty within S. 90 of the Australian Constitution. 26. It is now necessary to consider the decision of this Court in 1962 Supp (2) SCR 741 (AIR 1962 SC 922), Disting. This decision is of course binding on us, but, in our opinion, this case is distinguishable. The question before the Court was whether Cochin Tobacco, Act, 1084 (Cochin Act VII of 1084 M.E.) and Travancore Tobacco Regulation, 1087 (Travancore 1 of 1087 M.E.) were laws corresponding to the Central Excise Act, and within Ss. 11 (1) and 13 (2) of the Finance Act, 1950. The Court was not concerned with the question whether the levies being made under these Acts were strictly excise duties within Item 51, List II and this is quite apparent from the fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of arrack. There is force in his contention. 30. In the result we hold that the health cess sought to be levied under the impugned Act on shop rent does not fall within Item I of Sch. A of the impugned Act or Entry 51, List II of the Constitution. 31. In W. P. No. 1076 of 1964 and in some other petitions in the High Court the petitioners have challenged the validity of the Mysore Health Cess Act. 1951. This Act was not referred to in the course of arguments. Section .3 of the Health Cess Act. 19517 reads thus : 3. (1) There shall be levied and collected a health cess at the rate of six pies in the rupee on all items of land revenue and at such rate not exceeding one anna in the rupee as may be specified by Government by notification on all other items of revenue on which education cess is leviable. (2) The Government may by notification levy health cess at such rate not exceeding one anna in the rupee as may be specified in the said notification on such other items of revenue as they deem fit. No notification or notifications issued under S.3 were placed before us. We are, therefore, unable to say whether the levy of the Health Cess under the Act of 1951 stands o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1901, and similar impost or payment by whatever name called payable under any other 1aw in force in any area of the State of Mysore. The other two items in Sch. A are water rate and tax on cinematograph shows. In Sch. B are mentioned taxes on (a) land and buildings, (b) vehicles, (c) professions, trades, callings and employments, and (d) advertisements. We are concerned with Sch. A (1) quoted above. The cess collected on that item is said by the appellants for various reasons, to be an illegal impost. They challenged it by petitions under Articles 226/227 of the Constitution before the High Court of Mysore, but the High Court after striking out the Explanation upheld the cess and hence these appeals. 35. The appeals can be divided into two groups. Some are concerned with toddy which is tapped from palm trees and the others with arrack which is prepared from molasses. Both are country liquors and the difference in the kind of liquor makes no difference to the questions of law and we may forget it. These liquors are subject to excise laws in force in the Mysore State but as different parts of the State are governed by different Acts we have for consideration the Mysore Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt may prescribe; (b) In the case of intoxicating drugs, by a duty to be rateably charged on the quantity produced or manufactured or sold by wholesale or issued from a warehouse licensed or established under .S 14: (c) by payment of a sum in consideration of the grant of any exclusive or other privilege (1) of manufacturing or supplying by wholesale, or (2) of selling by retail, or (3) of manufacturing or supplying by wholesale and selling by retai1 any country liquor or intoxicating drug in any local area and for any specified period of time; (d) by fees on licences for manufacture or sale (e) in the case of toddy, or spirits manufactured from toddy, by a tax on each tree from which toddy is drawn, to be paid in such instalments and for such period as the Government may direct; or (f) by import, export or transport-duties assessed in such manner as the Government may direct: Provided that when, there is a difference of duty as between two licence periods such difference may be collected in respect of all stock of country liquor or intoxicating drugs held by licensees at the close of the former period. We are concerned mainly with (c) and (e) above and one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lege of .selling and in addition pays the health cess on both these sums at nine paise per rupee. Where he sells beer or such other liquor he obtains his supplies from breweries and distilleries at fixed prices which do not include excise duty. 39. Now the health cess is first assailed on the ground that there is no entry 'health cess' as such in the legislative entries. The word 'cess' is used in Ireland and is still in use in India although the word rate has replaced it in England. It means a tax and is generally used when the levy is for some special administrative expense which the name (health cess, education cess, road cess, etc.) indicates. When levied as au increment to an existing tax, the name matters not for the validity of the cess must be judged of in the same way as the validity of the tax to which it is an increment. By Schedule A (1) read with S. 3 of the Act, it is collected as an additional levy with a tax, which, as described in Sch. A, is undoubtedly one within the powers of the State Legislature and has been so even prior to the Constitution. The question, however, is whether the amount paid for the exclusive privilege of selling liquor is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty so far. The short question is: Is this a duty of excise? My emphatic answer is that it is, whether the matter is considered in the light of economic theory, legislative practice or judicial authority. I shall examine the question from these three angles. 42. Before I deal with the economic theory I must say that I am aware that the economists' definitions were not treated as conclusive by the Privy Council in Bank of Toronto v. Lambe, (1887)12 AC 575 at pp. 581, 582 and by Sulaiman, J. in1939 FRC 18 at p. 58:(AIR 1939 FC 1 at p. 14), although in the first case Lord Hobhouse commended reference to works on Economics and Lord Thankerton in Attorney General for British Columbia v. Kingcome Navigation Co., 1934 AC 45 at p. 91, actually used Mill's definition of direct and indirect taxes. In this connection it is not necessary to refer to many books. In the Encyclopaedia of Social Sciences Excise is described as a tax on commodities of domestic manufacture levied either at some stage of manufacture or before sale to home consumers. It is also pointed out that the excise duty may be levied on the raw material or the finished article or it may attach to an intermediate st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liquors within the legislative competence of the Provinces by Entry 31 in List II. The power to levy excise duties was divided between, the Centre and the States. By Entry 45 of the Central List in the 7th Schedule duties of excise on tobacco and goods manufactured or produced in India, other than those mentioned in the Provincial List, were given to the Centre. The Provincial List by Entry 40 included excise duty on alcoholic liquors for human consumption manufactured or produced in the Province and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India. The whole of the power to levy excise duty on alcoholic liquors for human consumption was passed on to the Provinces. The subject of excise duties was thus plenary in so far as alcoholic liquors were concerned and this power was no whit less than the power conferred by the Devolution Rules and no limitation could be read into it. Excise duty on alcoholic liquors could be collected at all stages from production till they were parted with to the consumer. The present Constitution has repeated the entries and the same classification of excise duties as in the Constitution Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, legislature has power to impose a duty of excise. In such cases there appears to he no reason why the Provincial legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether or not such a course is followed appears to be merely a matter of. administrative convenience. So by parity of reasoning may the Federal legislature impose a duty of excise on the manufacture of excisable goods and the Provincial legislature impose tax on the sale of the same goods when manufactured.'' 46. The above passage clearly shows that where the power to levy sales tax as well as excise duty resides in the same legislature, the levy of excise duty may be made at some earlier stage but so long as the tax is levied in respect of manufacture there can be no objection that it was not levied at the stage when the goods left the manufacturer for the first time. 47. Fine distinctions were drawn in the Federal Court case because the Act considered there was concerned with sales tax, not on alcoholic liquors but on petroleum and lubricants, which were excisable by the Centre. The question, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is a slight difference between the Privy Council case and the case of this Court. In the former excise duty was said to be primarily a duty levied on a manufacturer or producer in respect of the commodity manufactured or produced while in the Supreme Court case it was said to be primarily a duty on the production or manufacture of goods produced or manufactured within the country. It is useless to enter into a discussion which of the two is the proper way to describe a duty of excise since the Supreme Court case is binding on me and the description there given has again been applied in 1964-3 SCR 787 at pp 804, 822 (AIR 1963 SC 1760 at pp. 1770, 1776), although without fresh discussion. 49. But even if the tax is treated as a duty on production. it is clear that the goods which were taxed were produced or manufacture in India and were not to bear the tax for any other reason. As the tax was in relation to the production or manufacture of goods it was clearly a duty of excise. As Gwyer, C.J. said in the In re C. P. and Berar case, 1939 FCR 18: (AIR 1939 FC 1) The ultimate incidence of an excise duty, a typical indirect tax, must always be on the consumer who pays as he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e observations have my respectful concurrence and in my judgment al they are true exposition of the width of the expression duty of excise when it is used in a context in which it has not to compete with the exercise of a rival power. Looked at in this way the tree tax and the composition amount obtained by the auction of the right to bring to sale home produced alcohol is a proper excise duty. It certainly is not shop rent even if the amount is payable by monthly instalments and is described loosely as rental, or Baithak or shop rent. 51. The objections to the views I have propounded here may be noted. It was argued that there is no close relation of the tax or levy to production or manufacture and it is related to the ability to sell, that the duty is not uniform because It has no relation to quantity or quality, that the collection of the duty is before the excisable goods come into existence and that there already a tree tax which is of the nature of excise duty. It is also said that if the right is auctioned how can countervailing duties at the same or lower rates be charged. I think none of them is a valid argument. Firstly, we must recognise the ambit of the entry and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them equal. 53. The view I have taken is fortified by two cases of this Court which are precedents to follow in the decision of the case in hand. In Cooverjee B. Bharucha v. Excise Commissioner and the Chief Commr., Ajmer, 1954 SCR 873 at pp. 877-878: (AIR 1954 SC 220 at p. 222), in dealing with Excise Regulation I of 1915, the amounts raised by public auction and described as fees were held to be more in the nature of taxes than fees. Revenue was collected by the grant of contracts to carry on trade in liquors and these contracts were sold by auction. The grantee was given a license on payment of the auction price. If this was treated not as a fee but as a tax it could only be justified as an excise duty. The power to raise excise revenue was exercisable only through the imposition of excise duties and it is obvious that the levy was regarded as a duty of excise. There was otherwise no other power under which revenue could be raised. Describing the tax Mahajan, C.J. made the following observations :- The pith and substance of the regulation is that it raises excise revenue by imposing duties on liquor and intoxicating drugs by different methods and it also regulates the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... distinction sought to be made is without a difference. Wanchoo, J. had discussed the nature of excise duty before proceeding to compare the auction money with duties of excise and he found that sale of the privilege to the highest bidder was a method of realising duty and he obviously meant excise duty. 56. These two cases are binding. I was a party to the second case and on reconsidering it in the light of arguments now advanced. I find that it furnishes a complete answer and is indistinguishable on the slender ground that the expression excise revenue or duty have been used and not the expression excise duty . To hold otherwise is to depart from this and the earlier case and to overrule them. 57. I am, therefore, of the opinion that the so called shop-rent was only a means of collecting excise duty and the health cess which was an additional levy alongwith the excise duty was perfectly valid. Being a new tax it cannot be described as a tax on tax. The earlier tax only furnished a measure. I would according confirm the decision of the High Court and dismiss the appeals with costs. 58. BACHAWAT, J. :The Mysore Health Cess Act, 1962 (Mysore Act No. 28 :of l962) levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... beer taverns and toddy shops in consideration of their agreeing to pay specified shop rents and health cess thereon at the rate of nine naya paise in the rupee. 62. Counsel for the State submitted that shop rent is a duty of excise, the Mysore Cess Act, 1962 levied a surcharge on this duty and the State Legislature was competent to make this levy, having regard to Entry 51, List II of Seventh Schedule to the Constitution. 63. The subject of duties of excise and fees in connection therewith is divided between the Union and the States, see Entries 84 and 96, List I and Entries 5l and 66 List II. The power to make laws with respect to duties of excise carries with it the ancillary power to make licensing laws for preventing the evasion of the duty. See Chaturbhai M. Patel v. Union of India, 1960-2 SCR 362: (AIR 1960 SC 424). The subject of intoxicating liquors, that is to say, their production, manufacture, possession, transport. purchase and sale is exclusively assigned to the States under List II, Entry 8. In this background, the expression excise is often used to denote the entire subject of the control of production manufacture, possession, transport, purchase and sale of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy producing tree, or by a levy on the consignee of coal despatched from the colliery by means of a surcharge on freight. 1962 Supp (3) SCR 436: (AIR 1962 SC 1281). The Court examines the substance of the levy. If it is a tax in respect of the manufacture or production of goods, it is a duty of excise, howsoever it may have been collected or realised. 67. If the duty of excise is levied with reference to the quantity, volume, weight or value of the goods, each unit will bear the same amount of tax. But the incidence of the duty on the goods will not necessarily be uniform where the levy is by a rate on each toddy producing tree, see S. 18 (e) of the Mysore Excise Act, 1901, or on each acre of hemp producing land, see S. 26 (1) of the C. P. and Berar Excise Act, 1915. Every tree and every acre of land may not produce the same quantity, volume, weight or value of the excisable commodity. Normally, the ultimate incidence of the tax is on the consumer, but the producer may not be able to pass on the tax to the consumer in all cases see (1962) Supp (2) SCR 1: (AIR 1962 SC1006). 68. The question is whether the revenue realised at a public auction of the privilege to sell an exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily a producer of toddy. If he produce, toddy, he pays tax at the prescribed rate on each tree from which toddy is drawn. As a producer of toddy he pays the tree tax. The charge for the toddy license has no connection with the production of today. The shop rent or the charge for the license to sell arrack, beer or toddy does not satisfy the test of a duty of excise. 71. As the shop rent is not a duty of excise the State legislature is not competent to make a law levying a surcharge on the shop rent under Entry 51, List II. The Mysore Health Cess Act, 1962, in so far as it purports to levy a surcharge on the shop rent cannot he sustained under Entry .51, List II. I express no opinion on the question whether this levy under the Mysore Health Cess Act, 1962 can be justified under some other Entry in List II. But as Counsel for the State did not seek to justify the levy under any other Entry, I am bound to hold that the Act, so far as it makes this levy, is unconstitutional. 72. In their writ petitions, the appellants claimed refund of the health cess collected from them under the Mysore Health Cess Act, 1962 and the Mysore Health Cess Act, 1951. Counsel for none of the parties a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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