Per K. Sankararaman :

The appeal challenges the correctness of the decision taken by the Collector of Central Excise (Appeals) vide his order in appeal No. 625-CE/DLH/90 dated 28.8.90 in terms of which he upheld the order in original passed by the Assistant Collector of Central Excise, Rohtak holding the appellant to be liable to pay duty on their product, transformers after including the charges incurred for what are known as impulse testing charges carried out outside the appellant's factory by specialised agencies like BHEL, CPRI.

2. Shri A.R. Madhav Rao, learned counsel for the appellant states that an exactly similar issue had come up before the Tribunal earlier in Ashok Transformers Pvt Ltd. Vs. CCE reported in 1996 (15) RLT 523 (CEGAT) = 1996 (67) ECR 192 when it was held that such charges cannot be included in the assessable value. The Tribunal in that case followed the decision taken earlier in Shree Pipes Ltd. Vs. CCE 1992 (42) ECR 110 (T). He pleaded that as the very same issue stands disposed of in favour of the assessee the present appeal may be allowed.

3. Opposing the plea placed in support of the appeal Shri M. Ali, learned DR states that as against the said decision pointed out by the learned counsel he would like to place before the Bench another decision of the Tribunal vide Final order No. 1846/97-A dated 3.10.97 in appeal No. E/4045/89-A in Collector of Central Excise, Baroda Vs. M/s. Impact Containers Ltd. Shri Ali explained that in the said case the question was the includibility of the charges incurred for isomerisation processes carried out at BARC, Bombay outside the assessee's factory. In view of this decision it was submitted by the learned DR that the issue involved in the present appeal needs to be reconsidered.

4. Giving rejoinder to the argument advanced by Shri Ali, learned counsel for the appellant distinguished the said case from the present one by pointing out that the issue involved in that case was not of testing charges but of the cost of carrying out the isomerisation processes at BARC, Bombay. In view of this factual difference involved he pleaded that the said decision will not be a factor for not following the earlier Tribunal decision which was in respect of impulse testing charges for transformers which is the very issue involved in the present case and which issue stands disposed of in favour of the assessee.

5. We have considered the rival submissions and perused the record. We have also gone through the order cited in support of the department. We find that in that case a small percentage of the total production of the manufacturer was sold to a particular buyer after being subjected to isomerisation process subjecting certain quantity of the manufactured products to the particular process as per the specific requirement of the particular customer is part of the manufacturing process and it cannot be equated to testing which is carried out on a selective basis on a percentage of the final products and which test is made applicable to the general run of production. The Tribunal in that case observed that there was no dispute that the particular buyer wanted isomerised aluminium tubes to be supplied on wholesale price plus isomerisation charges and that such a buyer bargained for isomerised tube and had to pay for the higher price for the same. The contract in that case was for supply of tubes subject to isomerisation process. Such a process is in the course of manufacture and any expenses incurred in that regard would add to the value of the goods. The situation is different as far as additional or optional testing of manufactured goods carried out at the instance of buyer which tests over and above the normal manufacturing process carried out by the manufacturer himself in which process there can be test carried out by himself. We see that the issue of impulse testing charges for transformers stands covered by the Tribunal decision referred to above. That decision was also taken