JUDGMENT D.P. Wadhwa, C.J. & S.J. Mukhopadhaya, J. - This reference has been made by the Commercial Taxes Tribunal, Bihar, Patna under Section 9D(1) of the Bihar Electricity Duty Act, 1948 (for short 'the Act') to this Court to give its opinion on the following questions of law : - (i) Whether the estimate of consumption of electricity from the Generator at 2000 units per month is based on any material on record or is arbitrary; (ii) Whether the estimate of consumption of 2000 units per month is wholly discriminatory and mala fide in view of the facts that the same assessing Officer in case of Kumar Talkies situated in the same town of Dhanbad which had two generators installed and had more ceiling fans than the petitioner had assessed the estimated consumption of 1000 units per month; (iii) Whether the rate of duty leviable on the electricity consumed from the generator installed in the cinema premises will be 2 paise per unit; (iv) Whether in view of Section 2K (iii) of the Bihar Factories Act, the cinema premises wherein the generator has been installed becomes an industrial undertaking; and (v) Whether the levy of penalty in the facts and circumstances of the case is illegal. 2. Reference has arisen out of the order dated May, 31, 1983 passed by the Commercial Taxes Tribunal in its revisional jurisdiction in the matter of assessment of electricity duty under the Act on M/s Ray Talkies of Dhanbad, the assessee for the period from June 1, 1978 to July 30, 1980. 3. The Act is for the levy of a duty on the sale and consumption of electrical energy in the State of Bihar. It is not disputed that the assessee is liable to payment of duty under sub-section (4) of Section 4 of the Act which is as under :- "(4) Every person (including any department of the State Government, other than a licensee, who generates energy for his own use or for the use of his employees, or partly for such use and partly for sale, shall pay every month at the time and in the manner prescribed the proper duty payable under Section 3 on the units of energy consumed by him or his employees or sold by him." Now we will refer to Section 3 of the Act. Its relevant part is as under :- "(1) Subject to the provision of sub-section (2), there shall be levied and paid to the State Government on the units of energy consumed or sold, excluding losses of energy in transmission and transformation a duty at the rate or rates specified in the Schedule." Sub-section (2) is not applicable in the present case. It is, therefore, not necessary to set out the same. 4. Turning to the Schedule, the basic question is as to at what rate the assessee is liable to pay the duty. This Schedule again in the relevant part is as under :- "THE SCHEDULE" (See Section 3) Sl. Premises Rate of Duty (Paise per unit of energy). No. 1. For a mine or an industrial undertaking, 2 save in respect of its premises used for residential or office purposes. 2. For other purposes - …… (1) In all premises not falling under 7 Article (2) …………….. ................................................................... (2) ………………………………………… Explanation. - For the purposes of this Schedule - (i) ……………… (ii) the expression "industrial undertaking" means all buildings or premises wherein or within the precincts of which any manufacturing process as defined in clause (k) of Section 2 of the Factories Act, 1948 (63 of 1948) is carried on; (iii) ………………." 5. Under Section 5-A of the Act there is power in the Assessing Authority to impose penalty for failure to furnish returns or pay duty, if a person fails without any reasonable cause, to furnish returns or to pay the duty within fifteen days from the expiry of the due date. 6. In the present case the Assistant Commissioner of Commercial Taxes quantified the duty payable by the assessee at the rate of 7 paise per unit, which came to Rs. 3640/- and also imposed a penalty of Rs. 860/-. The Commercial Taxes Tribunal, however, while maintaining the duty payable reduced the penalty to Rs. 500/-. The assessee is running a cinema and keeps a generator which he puts into use to generate electricity in case of failure of supply from the Bihar State Electricity Board. The energy so generated is transmitted to the projector and also to fans, etc. for proper running of the cinema and for providing comfort to cinema goers. 500/-. The assessee is running a cinema and keeps a generator which he puts into use to generate electricity in case of failure of supply from the Bihar State Electricity Board. The energy so generated is transmitted to the projector and also to fans, etc. for proper running of the cinema and for providing comfort to cinema goers. The Assessing Officer estimated the consumption from the generating set of the assessee at the rate of 2000 units per month and, as noted above, levied duty at the rate of 7 paise unit. The finding that the assessee was generating 2000 units of energy per month has been upheld by the Tribunal and so also the fact that the assessee without any reasonable cause failed to pay the duty within the time prescribed. The Tribunal, therefore, upheld the levy of penalty but in the circumstances of the case reduced the same to Rs. 500/-. The only question of law that remains to be answered is if the assessee is liable to payment of duty at the rate of 2 paise per unit as contended by him or 7 paise per unit as contended to the contrary by the revenue. For this if we find that the assessee is having an industrial undertaking, he would be liable to payment of duty at the rate of 2 paise per unit otherwise it would be 7 paise per unit. As to what is meant by the expression 'industrial undertaking' as given in Explanation (ii) to the Schedule aforementioned, we have to refer to the definition of 'industrial undertaking' as given in clause (k) of Section 2 of the Factories Act, 1948, which definition in the relevant part is as under :- "(k) 'manufacturing process' means process for- (i) ….. (ii) ……. (iii) generating, transforming or transmitting power, or (iv) …… (v) …… 7. After a bare reading of the definition of the expression 'industrial undertaking' we do not think, there can be any doubt if the assessee is an 'industrial undertaking' or not. To our mind the assessee would be an industrial undertaking inasmuch as it generates energy from the generator installed in the cinema house and that the energy is transmitted to projector and to other electrical appliances installed in the cinema house. 8. To our mind the assessee would be an industrial undertaking inasmuch as it generates energy from the generator installed in the cinema house and that the energy is transmitted to projector and to other electrical appliances installed in the cinema house. 8. Learned Advocate General wanted us to refer to the expression "industrial undertaking" or the like as appearing in other enactments, for example to the definition of 'industrial company' as appearing in the Finance Act. We do not think, we have to refer to all these definitions as also to the various pronouncements on the basis of those definitions as to what is 'industrial undertaking' is defined in the Act itself with reference, of course, to the Factories Act. 9. An attempt was made by the learned Advocate General to show that the Explanation to the Schedule to the Act had since been repealed but we think he is quite mistaken about it. When the Act was enacted the Schedule, in its relevant part, reads as under : The Schedule (See Section 3) Rates of Duty A. For a mine or an Such rate or rates industrial under- not exceeding 2 taking save in naye paise per unit respect of its of energy as may premises used for from time to time, be residential or office fixed by the State purpose. Govt., with the previous consent of the President, by order in this behalf. B. For other purposes – (1) In all premises Such rate not not falling under exceeding 7 naye article (2) paise per unit of energy as may, from time to time, be fixed by the State Government with the previous consent of the President, by order in this behalf. (2) In all premises Such rate per where the supp- mensem as may, ly of energy is from time to time, unmetered, for be fixed by the State Govt. with the previous consent of the President, by order in this behalf, not exceeding- Naye Paise every lamp of less than 30 32 watts Every lamp of 30 watts or more but less than 40 watts. 47 Every lamp of 40 watts or more but less than 60 watts. 63" xx xx xx xx xx xx xx "Explanation. with the previous consent of the President, by order in this behalf, not exceeding- Naye Paise every lamp of less than 30 32 watts Every lamp of 30 watts or more but less than 40 watts. 47 Every lamp of 40 watts or more but less than 60 watts. 63" xx xx xx xx xx xx xx "Explanation. - For the purposes of this Schedule – (i) The expression "industrial and undertaking" means all buildings or premises wherein or within the precincts of which any manufacturing process as defined in clause (k) of Section 2 of the Factories Act, 1948 (63 of 1948) is carried on. (ii) The expression "Lamp" includes any other contrivance by which energy is consumed." 10. The rates mentioned in paragraph 4 above were fixed by the State Government with the previous sanction of the President of India and published under S.O. No. 1203 dated 1st August, 1974, and were effective from the same date. The rates were fixed as power is vested in the State Government to fix the rates with the previous consent of the President in terms of the Schedule originally part of the Act as mentioned in the preceding paragraph. It would be thus seen that it was only by statutory orders the rates were fixed. The explanation to the Schedule could not have been deleted by mere statutory order as no power is vested in any statutory body to tinker with the legislation. We think this confusion was caused by referring to the private publications which do not bring about the correct position of law. 11. We thus answer question nos. (iii) and (iv) in favour of the assessee holding that the cinema premises where the generator h been installed would be an 'industrial undertaking' and rate of duty leviable on the electricity consumed from the generator would be 2 paise per unit. Questions no. (i), (ii) and (v) are answered against the assessee as these are based on the findings of fact and do not raise any question of law. 12. Reference is answered accordingly. 13. There shall be no order as to costs.