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We may mention that he conceded that the tree tax was an excise duty and he confined his case to shop rent or kist.

8. Before we deal with the points raised by the learned counsel, it is necessary to set out the relevant provisions of the Mysore Excise Act (Act V of 1901) and the impugned Act. We may mention that in some appeals the relevant law is the Hyderabad Abkari Act No. 1 of 1316 Fasli, and not the Mysore Excise Act, but it is common ground between the parties that there is no material difference between the provisions contained in the Mysore Excise Act and the Abkari Act. The Mysore Excise Act was enacted in 1901. In S. 3 (1) it defined "excise revenue'' to mean "revenue derived or derivable from any duty, fee. tax, rent, fine or confiscation imposed or ordered under the provisions of this Act or of any other law for the time being in force relating to liquor or intoxicating drugs". There was no definition of the words "excise duty" in this Act at all. This Act substantially followed the Madras Abkari Act, 1886 (Madras Act I of 1886). It is interesting to note that the Madras Abkari Act was amended by the Adaptation of Indian Laws Order, 1937, and C1. (22) was inserted in the definition section, .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 under:

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 Act passed as far back as 1901 by the Ruler of the former Mysore State (Act No. V of 1901) and the Hyderabad Abkari Act (No. 1 of 1316 F). The two Acts are so alike in their provisions that no point depending on any difference was made before us and I shall, therefore, refer to the Mysore Act throughout. What I say about it will apply with suitable adaptation to the Hyderabad Act.

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 addressed any argument on the question of refund or on the question of the validity of the Mysore Health Cess Act, 1951. The entire records of all the tenders- cum-auctions are not before us. It is not quite clear whether the surcharge of nine naya paise in the rupee on the shop rent, though called a health cess, can be justified independently of the Health Cess Act, 1962. Under the Mysore Excise Act and the Hyderabad Abkari Act, the State Government could grant the exclusive. privileges of sale of liquor on such terms and conditions as it thought fit. It could impose the condition that the grantees would pay a fixed shop rent and a surcharge of nine naya paise in the rupee thereon. A charge of Rs. 500 as shop rent and a surcharge of nine naya paise in the rupee thereon are, in effect, a charge of Rs. 545 for shop rent. The appellants cannot claim refund of the surcharge called the health cess on shop rent, if it was or could be collected by the State Government by virtue of its powers under the existing Excise Acts. On the other hand, the State Government is liable to refund the surcharge if it was and could be collected under the Mysore Health Cess Act, 1962 only. In the absence of arguments and fuller materials, the point is left open.