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2020 ] COMMERCIAL TAXES OFFICER v. BOMBAY MACHINERY STORE 167
is found that assessee had taken physical delivery or the goods remained
with the transporter beyond a reasonable time looking to the facts and cir-
cumstances of each case, the doctrine of constructive delivery should be in-
voked and action be taken accordingly.
S. No. 1132A : CCT Circular F. 11(3)CST/Tax/CCT/61, dated 15-4-1998
It may be recalled that vide circular dated 16-9-1997 [S. No. 1115B], instruc-
tions were issued clarifying therein the legal position of granting benefits
under Section 6(2) of the CST Act, 1956. It has been clarified that the con-
cept of constructive delivery shall also be invoked while determining when
the transit comes to an end. It was also clarified that the Railways or Road-
ways usually impose conditions of delivery of goods transported by them
at the destination within 10 days and the consignee is required to check up
with such transporting agency as to the arrival of the goods. In view of this,
it was desired by the above referred circular that the AAs should ascertain
the fact that whether the goods remained with the transporter beyond rea-
sonable time. Looking to the facts and circumstances of each case, the doc-
trine of constructive delivery should be invoked and action be taken ac-
cordingly.
The representatives of various associations of trade and industry had
brought to the notice that in almost all cases the AAs are invoking the doc-
trine of constructive delivery in a mechanical manner immediately after ten
days of arrival of the goods at the destination. As per these Associations,
this approach has resulted in hardship to the dealers and avoidable har-
assment is being caused to them with adverse effect on the trade. They have
requested for increasing this limit.
Keeping in view these factual aspects and the discussions at the Govt. level,
it is reiterated that the reasonability of the time should be looked into after
analysing the facts and circumstances of each case and the usual period of
treating constructive delivery which may even extend upto thirty days in-
stead of ten days as suggested in the above referred circular.
Deputy Commissioner (Admn.) should ensure that, while ensuring the
State revenue, no harassment shall be caused to the dealers by enthusiastic
assessing authorities while determining the end of transit.”
6. The High Court has referred to two decisions, one by the Rajasthan
High Court itself, in the case of Guljag Industries Limited v. State of Rajasthan &
Another reported in (2003) 129 STC 3 (Raj.) and the other of the Delhi High Court
in the case of Arjan Dass Gupta and Brothers v. Commissioner of Sales Tax, Delhi
Administration, (1980) 45 STC 52 (Delhi). In the latter decision, a Bench of the
Delhi High Court construed certain provisions of 1956 Act and the Bengal Fi-
nance (Sales Tax) Act, 1941, (as it was applicable to Delhi at the material point of
time). On the aspect of what would be implication of the expression ‘delivery’ in
Section 3(b) of the 1956 Act, it was, inter alia, held :-
“10. ……. Normally, when the goods are carried by a carrier from one
State to another, the delivery is taken by the importer immediately after the
goods land in the importing State. Thus, normally, the landing of the goods
in the importing State and the delivery of the goods are almost simultane-
ous acts, although technically there will be some hiatus between the two.
Considering these commercial facts, it is difficult to accede to the retailer’s
contention that the movement of goods continues even if the goods have
landed in Delhi only because the importer has transferred the documents of
title to the purchasing retailers and such retailers take delivery from the
railways at a subsequent time. If taking delivery is the test of termination of
movement and not the landing of the goods in an importing State, Explana-
GST LAW TIMES  14th May 2020  65