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16. The second argument addressed by Mr. Srinivasan must therefore be dismissed as unsustainable.

17. But the first submission made by him to us that there has been excessive taxation in this case appears to me to be a substantial complaint.

18. Now, as already pointed out, the goods sold by the petitioner are those mentioned in column (2) of the Second Schedule to the Act. It is not disputed that the petitioner sold during the relevant period foreign liquor such as gin, brandy, whisky and rum, foreign beer and country beer manufactured in India. The complaint made by the petitioner is that in respect of the turnover relating to the sales of Indian beer, the tax demanded is excessive.

26. The expression "country liquor" occurring in items 38 and 39 is defined by Explanation II appearing underneath the Second Schedule and that Explanation reads :-

"Explanation II - 'Country liquor' in items 38 and 39 means liquor manufactured in India, other than liquor manufactured and compounded in India and coloured and flavoured to resemble gin, brandy, whisky or rum imported from outside the territory of India".

27. If Indian beer is country liquor, it is clear that it is taxable only under the 39th item, unless we come to the conclusion that the 38th item is the item under which alone all kinds of beer, whether it is Indian beer or foreign beer, is taxable.

44. The next question would be whether the beer sold by the petitioner in this case, if such beer was manufactured in India, is country liquor, and therefore not governed by the 38th item.

"Country liquor", as defined in Explanation II appearing underneath the Second Schedule, means liquor manufactured in India, other than liquor manufactured and compounded in India and coloured and flavoured to resemble gin, brandy, whisky or rum imported from outside the territory of India.

45. Beer being in my view liquor, if it is beer manufactured in India and is not coloured and flavoured to resemble foreign gin, foreign brandy, foreign whisky or foreign rum, is clearly country liquor falling within the said Explanation.

46. If the beer sold by the petitioner in this case was not coloured and flavoured to resemble foreign gin, foreign brandy, foreign whisky or foreign rum, such beer was country liquor within the meaning of that expression occurring in the 39th item and therefore not taxable under the 38th item.

47. The assumption made by the Mysore Sales Tax Appellate Tribunal that all beer, whether foreign or indigenous, is taxable only under the 38th item is therefore an assumption resting on a misconstruction of the 38th item.