JUDGMENT : Krishn Kumar Lahoti, Actg. C. J.:- The petitioner has challenged the order dated 6-10-2008 Annexure P-1, passed by the Commissioner, Commercial Tax, Madhya Pradesh, respondent No. 2, in exercise of his powers under section 70 of the Madhya Pradesh VAT Act, 2002, by which the claim of petitioner to treat mouth blown, hand grafted glass articles as "Handicrafts" under Entry No. 45 of Schedule 1 of the Madhya Pradesh VAT Act, 2002 (hereinafter referred to as 'Act' for short) was turned down. 2. The facts of case are as under :- (a) That the petitioner is a Company registered under the provisions of the Companies Act, 1956, having its registered office at Indore. The petitioner-Company is engaged in the business of manufacturing and trading of mouth blown, handcrafted, 30% lead crystal glassware. As per the petitioner, the petitioner is the only unit which is engaged in the business of manufacturing of such handcrafted glassware in the entire country. (b) The petitioner company is registered with Export Promotion Council for promotion of handicrafts, New Delhi sponsored by the Ministry of Textile, Government of India for manufacturing of "Handicrafts". A copy of such certificate is enclosed as Annexure P-4 along with the petition. The petitioner is also registered with M. P. Handicraft Development Corporation Limited, Bhopal. As per Annexure P-3 certificate, the petitioner company is the only company in India manufacturing 30% lead crystal glassware by the process of mouth blown hand cutting and hand polishing. (c) The entire manufacturing process is based on minute specifications of mixture of raw material by hand and melting thereof at a specified degree of heat in oven. On melting at a specified degree, the melted glass is extracted manually by long pipe and is placed in a dye and blown by the mouth to get the desired structure. The structure in dye is kept for sufficient time to come down to a particular level of temperature. The ingot so prepared by the mouth blown process is then marked by ink by hand for design on places where cutting is required. After marking, the article is given desired shape by hand cutting through hand operated grinder. The entire process of hand cutting through grinder is manual and requires skilled labour. (d) The process of cutting leads to ornamentation of the article to improve the visual appearance by artistic improvement. After marking, the article is given desired shape by hand cutting through hand operated grinder. The entire process of hand cutting through grinder is manual and requires skilled labour. (d) The process of cutting leads to ornamentation of the article to improve the visual appearance by artistic improvement. By the process of hand cutting the value of article gets enhanced manifold. After marking of design by hand is over, cutting by hand starts and on completion of cutting, hand polishing is made. Then the article becomes a marketable product. Without cutting the ingot has no marketable value, except a mouth blown article. Cutting and polishing are important part of crystal, without which it is a simple article. (e) The petitioner had moved an application on 7-3-2008 to the respondent No. 2 to consider the product of petitioner as "handicraft" and exempt the product for levy of Entry Tax/Sales Tax/VAT Tax. A copy of the application is filed as Annexure P-5. (f) Schedule I of Act provides list of tax free goods and Entry No. 45, which is relevant in the case reads as under :- "45. Handicraft and incense sticks commonly known as agarbatti, dhupkathi or dhupbatti, hawan samagri including lobhan and gugal." (g) The Deputy Commissioner, Commercial Tax, Madhya Pradesh, vide letter dated 25th March, 2008 had intimated to the petitioner that the product of petitioner cannot be treated as "Handicraft" without assessment and this fact can be decided by the assessing officer only at the time of assessment. If the petitioner requires clarification in the matter, it can move an application under section 70 of the Act to respondent No. 2 Commissioner, Commercial Tax. A copy of the letter dated 25-3-2008 by the Deputy Commissioner, Commercial Tax is filed as Annexure P-7. (h) Then the petitioner vide application dated 26-6-2008 had moved to the respondent No. 2 the Commissioner under section 70 of the Act for clarification of the issue as to whether the product manufactured by the Company falls within the purview of handicraft under the Entry No. 45 of Schedule I. In this regard a detailed representation was filed on 26-6-2008 Annexure P-8. (i) The respondent No. 2 vide order dated 6th October, 2008 rejected the application of petitioner company on the ground that the petitioner company was using machinery for manufacture of glassware, the benefit of exemption under Entry No. 45 cannot be extended to it by treating the mouth blown hand crafted glass articles as 'Handicrafts". This order is under challenge in this petition. 3. The contentions of the petitioner are that the entire process of manufacturing crystals as stated hereinabove is not in dispute. For hand cutting and polishing the hand machines are being used. That by itself cannot be a ground to say that the product was not a handicraft. 4. The petitioner has placed reliance to the Apex Court judgment in the case of Collector of Central Excise, New Delhi vs. Louis Shoppe, 1996(83) E.L.T. 13 (S.C.). In which the Apex Court has laid down two tests to decide whether any article qualifies to be handicraft or not. The Apex Court in Louis Shoppe (supra) held that an article is a handicraft, if it satisfies following conditions :- (i) That it must be predominantly made by hand. It does not matter if some machinery is also used in the process. (ii) That it must be graced with visual appeal in the nature of ornamentation or in-lay work or some similar work lending it an element of artistic improvement. Such ornamentation must be of a substantial nature and lot a mere pretense. On the basis of aforesaid discussion, it was submitted by the petitioner that the products of the petitioner are handicraft and are exempted from payment of VAT/Entry Tax. 5. The respondent/State has filed reply opposing the petition. In para 2 of the reply the process insofar as manufacturing of crystal has not been disputed, but it is submitted that in the process electric machines for cutting and giving artistic shapes are used. The article is also polished by acid, which results in the final product. Thus in the process of manufacturing of product, it is processed through various machines, therefore it cannot be said that the final product is predominantly made by the hand and was not a handicraft. 6. The article is also polished by acid, which results in the final product. Thus in the process of manufacturing of product, it is processed through various machines, therefore it cannot be said that the final product is predominantly made by the hand and was not a handicraft. 6. Shri L. N. Soni, learned Senior Advocate supported his contention by the judgment of Apex Court in Louis Shoppe (supra) and has also placed reliance to another judgment of the Apex Court in Padmini Products vs. Collector of Central Excise. 1989(43) E.L.T. 195 (SC). 7. To appreciate the rival contention of the parties, it is not in dispute that process of manufacturing of crystals is entirely manual. The respondent No. 2 in the order Annexure P-l under section 70 of the Act has referred the entire process of manufacturing of crystal items. The entire process before designing and cutting is not in dispute, but the Commissioner has recorded that for designing and polishing hand machines are used. Though for polishing acid is used, but because of this use of machines, the product cannot be said to be a handicraft. On this ground the Commissioner has dismissed the application of the petitioner. 8. To consider the entire process of manufacturing of crystals, it would be appropriate if the process as placed on record by the petitioner is referred, which is reproduced as under :- (a) Mixing:- First of all the required chemicals are weighed in the required quantity for hand mixing. Mixing of chemicals such as Quartz (Sand), Lead, Potassium Carbonate, Borax and broken glass pieces etc. is done in a big SS tray with hands for 2 Hours. After the mixing of chemical by hand, the mixed batch is poured manually into the furnace by hand with the help of SS Scopes. (b) Mouth Blowing Process :- (i) Melted glass is taken out of the furnace at around 1200 degree celsius, manually with the help of SS Pipes, by gathering the required quantity of glass on the SS pipe. Utmost skilled is required to gather the glass from the furnace at such a high temperature. The glass gathering process form the furnace requires immense skill and deep expertise that the atmospheric air inside the furnace should not be trapped while rolling the glass on the pipes. The trapping of air along with the glass forms air bubbles in the glass. The glass gathering process form the furnace requires immense skill and deep expertise that the atmospheric air inside the furnace should not be trapped while rolling the glass on the pipes. The trapping of air along with the glass forms air bubbles in the glass. Any article made of such glass with bubble is being rejected and is not acceptable in the market. (ii) The quantity of glass required to mouth blow an article varies and is dependent on the size and shape of the article. For bigger articles the quantity of glass to be drawn from the furnace will be more and different as compared to the quantity required to blow a smaller piece. To ascertain the quantity of glass to be withdrawn from the furnace, according to the requirement of the article, is a highly skilled work and can only be done by the skilled, experienced and experts craftsmen. (iii) For taking out the required quantity of class by hand on the pipes, first of all a very small quantity of glass is taken out of the furnace. A very calculated quantity of air is given by the mouth from the other end of the pipe to make a small ball of glass on the other end of the pipe. The air given by mouth should be given with such a care that the wall thickness of the entire ball should be identical. This pipe is rolled for proper balancing of glass ball with hands for some time to allow it to cool down. After, the required cooling, the same pipe is again dipped into the furnace to gather some more glass (required to finally blow the article) on the cooled ball. Here again, the gathering should be done in such a way that the atmospheric air is not trapped along with the glass to avoid the formation of air bubble in the glass. (iv) The glass, thus taken out by hand on the pipe is balanced and handled by the craftsmen in such a way that around 70% - 80% of the shape of the article is given outside only by hand by hitting the glass on paper scrap/bowl or even balancing it by hands/before dropping it into the mould. (iv) The glass, thus taken out by hand on the pipe is balanced and handled by the craftsmen in such a way that around 70% - 80% of the shape of the article is given outside only by hand by hitting the glass on paper scrap/bowl or even balancing it by hands/before dropping it into the mould. (v) While balancing and giving the shape, the glass on the pipe is handled, and is blown by mouth in such a way that the distribution of glass within the entire article should be uniform. This is a highly skilled process and any mistake or mishandling at this level, results in un-uniform distribution of glass within the article which gives bad visual appearance in the final product and the product thus made or irregular wall thickness is not saleable in the market. So, a proper handling at this level is the utmost requirement for a perfectly distributed article. (vi) After giving this shape by hand, outside the furnace, the glass is dropped into the mould and a very calculated quantity of air is given by mouth from the other end of the pipe. Any un-calculated blowing of air by mouth gives an un-uniform wall thickness of the article. (vii) The air given through mouth and balancing and handling glass outside the mould by hand also plays the most important role in the entire manufacturing process product. The visual appearance and market acceptability of the final product completely depends on the proper distribution and bubble free glass making which is possible only by the skilled and experienced craftsmen. Any mistake/mishandling at these levels results in manufacture of a inferior/defective product which gives a bad visual appearance and is not acceptable in the market. The pipe, attaching the mouth blown article at one end, is rolled by hands on a balancing table till the article is comfortably balanced and cooled to a required temperature. (viii) After the balancing and cooling of article, the pipe along with the attached mouth blown article is taken to crack-off table to detach the blown article from the pipe. (ix) At crack-off table, small quantity of water is dropped exactly at the end where the article is attached with the pipe, then one or two strokes of a small wooden rod with hand on pipe detach the article off the pipe. (ix) At crack-off table, small quantity of water is dropped exactly at the end where the article is attached with the pipe, then one or two strokes of a small wooden rod with hand on pipe detach the article off the pipe. The introduction of even excess water at the joint of article with pipe can crack the hot glass immediately. (x) The article such detached from the pipe is put into the annealing oven for gradual cooling by hand. This process also requires high skills and experience. The approximation of temperature at which the article should be put into the oven and method of placement of article in the annealing oven plays a very important role in the final appearance of the product. Any mis handling/mis-approximation at this stage can cause the de-shaping/breakage of the article due to the temperature difference of the article and the temperature inside the oven. Annealing in Ovens is done to avoid the breakage of blown products to cool down the blown products directly from 1200° to room temperature. (c) Surface Finishing and Hand Grinding :- The mouth blown articles coming out of the oven have different types or shrinkages/marks on it. These are mainly due to the immediate drop of temperature form 1250 deg. cel. to around 450 deg. within a span of 1-2 minutes. These marks are being removed by hand grinding each article on wheels. This is again a very tricky process which requires immense skill and expertise. Any mishandling at this stage causes unbalancing/difference in sizes or uniformity of the article. If an article is properly grinded and balanced, its visual appearance will definitely come out well and will be acceptable in the market. (d) Designing. Marking and Cutting :- (i) After grinding, the article is forwarded to marking section for marking of designs on the products by hand. Marking is done manually and plays the most important role in the design cutting on the articles. (ii) Marking is a process where the design is drawn on the articles manually by hand with permanent markers to facilitate the cutters to cut on the articles, for required designs. The design made by hand should be accurate in all types of parameters as any misconduct in designing will finally lead to a wrong design being cut on the article, which badly affects the ornamental finish into the final appearance of the article. The design made by hand should be accurate in all types of parameters as any misconduct in designing will finally lead to a wrong design being cut on the article, which badly affects the ornamental finish into the final appearance of the article. (iii) A proper design drawn by hand gives the cutter a perfect guideline to cut the required design on the article and a perfect cutting finally results into a complete ornamental finish and excellent visual appearance of the article. Immense skill and experience is required for a perfect marking and training is being imparted to the workers at factory for this purpose. Once the design in drawn on the article, the same is taken to the cutting department. (iv) Cutting is the most important section which plays the utmost role in the final visual appearance of the article. A proper cutting with a measured angle of the wheel creates a complete 'V groove in the article which is the only responsible factor for the shining of the article. The angle of the wheel is given by cutting the extra portion of wheel by holding diamond sticks in hands and rotating the stick in such a manner that the required angle of the edge of the wheel is achieved. (v) Cutting is done by hands with the help of wheels, by holding the article in hands in such a manner that the required amount of pressure can be introduced on the wheel to cut the article on the marked design. The pressure applied should be so calculative that if it exceeds the required 'limits, the article can be broken out and if it is less than the required measure then the required depth of the cut will not be achieved which ultimately gives a dull visual appearance after polishing. (vi) A deep concentration and high skills are required while cutting the article as a slight carelessness can allow the article to be cut on the unmarked area which ultimately causes the disproportion of design. (vii) A perfectly cut piece is a result of an accurate angle of the wheel and the accurate required pressure which finally gives the required depth of cutting on the article. Such articles when acid polished, gives a brilliant reflection of the lights falling on them which is visible as shining of the article. (vii) A perfectly cut piece is a result of an accurate angle of the wheel and the accurate required pressure which finally gives the required depth of cutting on the article. Such articles when acid polished, gives a brilliant reflection of the lights falling on them which is visible as shining of the article. For the best visual appearance and utmost ornamental finish, an article needs to be perfectly designed, marked cut and polished. (e) Acid Polishing :- (i) After the article is cut, the same is forwarded for acid polishing. It is a process where the article is being hold is hands and dipped into a mixture of two acids. The timing for dipping of the articles.in the mixture of acid for them being polished is different for different articles. This dipping again requires skill and experience as for what time the article must be dipped, the concentration and temperature of the mix acid has to be maintained. This is again a calculative process where skill and expertise is required to access the time required for polishing an article. (ii) In this process first of all, the two acids i.e. Hydro fluoric acid 50% and sulphuric acid 99% are mixed in a fixed ratio and the mixture is heated to a required operating temperature. (iii) This is a process which finally shines the article. Any misconduct at this stage can cause a complete rejection of all the efforts and cost incurred on the article in earlier processes. One single extra dip can cause the burn marks on the article which badly effects the visual appearance of the article and also lesser dips then required, can result into an dull type of finish on the article. (iv) The article is hold in hands and needed to be rotated in such a manner that every part of the article is exposed to the acid for the polishing. A good and perfect polish gives a brilliant shining and ornamental visual appearance to the article. This process change the whole visual appearance of the products and grace the products a brilliant and everlasting shine and glitter. All the ornamentation done in cutting of the product is clearly exposed after polishing. The aforesaid process, as placed on record by the petitioner, is not in dispute. Except cutting and polishing, machines are not used by the petitioner. 9. All the ornamentation done in cutting of the product is clearly exposed after polishing. The aforesaid process, as placed on record by the petitioner, is not in dispute. Except cutting and polishing, machines are not used by the petitioner. 9. Now in the light of the aforesaid facts, whether the product of the petitioner can be treated as handicraft or not is to be seen. In Concise Oxford Dictionary, the handicraft has been given a meaning "Manual skill; manual art or trade or occupation; man skilled in a handicraft." In Chamber's Dictionary "Handicraft" has been given meaning "A manual craft or trade". In Webster "Handicraft" has been defined as "a craft", the product of hand work. 10. The Apex Court in Padmini Products (supra) in paras 5, 6 & 7 of the order has considered various parameters for declaring the product as handicraft. The Apex Court has found that if some goods be produced partly by machine and partly by hand, in such cases a product should be regarded as hand made or handicrafts if the essential character of the product in its finished form is derived from the 'hand-made' aspect of its production. The Apex Court further referred the paragraph from Policy Book in respect of 'Handicrafts', which reads thus :- "Articles which are classifiable elsewhere in this policy will be deemed to be 'Handicrafts' falling in this group only if such articles, besides being made by hand, have some artistic or decorative value; they may or may not possess functional utility value in addition. Artistic or decorative value of the article exported need not necessarily come out of any art work, engraving or decoration done on the article but the very form, shape or design of the article could also be artistic and suggestive of the fact that the article is primarily meant for decorative and not for utility purposes." The Apex Court referring the Encyclopaedia Britannica, has reproduced meaning of 'handicraft', which reads thus :- "Occupation of making by hand usable products graced with visual appeal. Handicrafts encompass activities that require a broad range of skills and equipment, including needle work, lace-making, weaving printed textile, decoration, basketry, pottery, ornamental metal working, jewelling, leather working, wood working, glassblowing, and the making of stained glass." 11. Handicrafts encompass activities that require a broad range of skills and equipment, including needle work, lace-making, weaving printed textile, decoration, basketry, pottery, ornamental metal working, jewelling, leather working, wood working, glassblowing, and the making of stained glass." 11. In the present case, it is not in dispute that for manufacturing of 30% lead crystal glassware the raw material is mixed by hands and it is being melted by a manual process upto a specified degree of heat in oven. After melting the material at a specified degree of heat, the melted glass is extracted manually by a long pipe and is being placed in a dye and blown by mouth to get desired structure. Thereafter the structure ingot, prepared by mouth blown process, is then marked by ink by hand for design purposes and thereafter the article is given desired shape by hand cutting through hand operated grinder. Meaning thereby that for designing and shaping though some machines are used, but all the aforesaid machines are hand operated and requires skilled labour to cut and given proper design on the glass. The article is also being handled in the entire process in hands and the designing, cutting and polishing is also being done manually. If the entire process from melting to finishing is being done by manual process and merely for cutting and polishing on glass some hand operated machines are used, it cannot be said that the product was not predominantly made by hands or it is made by machines. The entire process shows that in the complete process such as handling, blowing, giving shape, marking and thereafter cutting and polishing by lifting article in hand is nothing, but an article made by hand and is Handicraft. Merely for cutting and polishing on a glass, hand operated machines are used then it cannot be said that the article is not a handicraft. 12. In view of aforesaid facts, no conclusion can be arrived except that the product of petitioner is a hand-made product and falls within the purview of handicraft. The order of respondent No. 2 Annexure P-l is not sustainable under the law and is accordingly set aside and it is declared that the crystal items manufactured by the petitioner company are handicraft and the petitioner is entitled for exemption under Entry No. 45 of Schedule I of the Act. Accordingly, this petition is allowed. The order of respondent No. 2 Annexure P-l is not sustainable under the law and is accordingly set aside and it is declared that the crystal items manufactured by the petitioner company are handicraft and the petitioner is entitled for exemption under Entry No. 45 of Schedule I of the Act. Accordingly, this petition is allowed. The petitioner shall be entitled for all the exemptions as are available to the petitioner under the Act. Considering the fact petitioner shall be entitled for the cost of this petition. Counsel fee Rs 2,000/-(Rupees two thousand only). Petition allowed.