ORDER : J.K. Ranka, J. 1. The instant petitions are directed against order dt. 15.10.2012 passed by the Rajasthan Tax Board, Ajmer, in Appeal Nos. 300/2011/Jaipur and 299/2011/Jaipur, whereby the appeals of petitioner have been dismissed. 2. The brief facts relevant for disposal of the petitions are that a survey was conducted at the business premises of the assessee and also simultaneously at M/s. Rajasthan Transport Co. Pvt. Ltd., Sanganer, and certain documents were taken by the survey team. It was noticed that the assessee is doing the business of dealing and sale & purchase of various items of chemicals and colours and the assessee is purchasing material in the course of inter State trade and commerce as per the provisions of sec. 3 of the Central Sales Tax Act, 1956. It was the claim that the assessee had sold the goods to various dealers who are also registered under the CST Act by endorsement of the documents. 3. The Assessing Officer, after investigation, noticed that though the assessee had sold certain goods u/s. 6(2) of the Act and it was noticed that the assessee had purchased the said goods from M/s. Atul Ltd. Colour Division, Gujarat, and the said transport company had got transported the same vide certain builties bearing Nos. 419444 to 419449 dt. 12.5.2000 and though the goods had been received at the godown on 16.5.2000 but the endorsement of transfer was made on 11.7.2000/4.8.2000, therefore, they were lying with the transporter for 55 days/80 days and in one particular case for 41 days, and it was the claim of AO that the assessee knowing fully well did not pay tax and showed it as sale u/s. 6(2), therefore, there was evasion of tax and accordingly show cause notice was given. 4. An explanation was offered by the assessee, however, the AO relied on a Circular issued by the Commissioner, Commercial Taxes bearing No. 97-98/13 dt 16.9.1997, and as per the Circular, constructive delivery of the goods had taken place and transit ends, and any sale by the consignee thereafter will be a local sale and benefit of sec. 6(2) will not be available, and taking into consideration the said Circular as well as further Circular bearing No. 98-99/01 dt 15.4.1998, held that tax was leviable as local sale and accordingly, imposed tax, surcharge as well as penalty. 5. The matter was assailed before the Dy. 6(2) will not be available, and taking into consideration the said Circular as well as further Circular bearing No. 98-99/01 dt 15.4.1998, held that tax was leviable as local sale and accordingly, imposed tax, surcharge as well as penalty. 5. The matter was assailed before the Dy. Commissioner (Appeals), who taking into consideration the prayer made by the assessee that no proper opportunity was granted, accordingly remanded/set aside the matter back to the AO. The AO again after taking into consideration the reply, did not interfere and repeated what was held earlier. 6. The matter was assailed before the Dy. Commissioner (Appeals), who also upheld the findings of the AO. 7. On a further appeal, the Tax Board also came to the same conclusion which was reached by both the authorities below, and upheld not only the tax but also the levy of penalty. 8. Learned counsel for the petitioner vehemently contended that the finding reached by all the three authorities is perverse and contrary to the material on record. Learned counsel contended that all the three authorities have relied upon the Circulars of Commissioner, Commercial Taxes, whereas neither Act nor Rule does mention any period upto which the goods could have been kept, and the Circulars could not have been followed without there being any material on record. Learned counsel also contended that when the Act or Rules does not prescribe mentioning of period, all the three authorities could not have relied upon the Circulars and, therefore, substantial questions of law arise out of the impugned order. Learned counsel also relied upon the judgment of this court rendered in the case of CTO, AE-1, Kota v. M/s. Bombay Machinery Store, Kota 2007(19) TUD (Pt.7) 315, where these two Circulars, taken into consideration by all the three authorities, have been quashed and once the Circulars having been quashed, the order is required to be reversed. 9. Per contra, learned counsel for the respondent contended that delivery had been taken and it was kept pending before the transporter for no reason or rhyme. Learned counsel also contended that even if the Circulars relied upon by the authorities are not taken into consideration, sec. 9. Per contra, learned counsel for the respondent contended that delivery had been taken and it was kept pending before the transporter for no reason or rhyme. Learned counsel also contended that even if the Circulars relied upon by the authorities are not taken into consideration, sec. 6(2) is quite clear of the Central Sales Tax Act that constructive delivery had been taken and once constructive delivery of the goods has been taken, then it has to be presumed that the sale was complete and transit ends. Learned counsel contended that the modus operandi of the assessee was that it was searching for buyers and the same was kept pending with the transporter to evade local tax which was payable. Learned counsel also contended that no plausible or reasonable explanation was offered as to why the goods were lying with the transporter for 41 to 80 days. On the one hand the assessee was incurring heavy demurrage but was not prepared to pay local tax and where there is a concurrent finding of fact recorded by the authorities below, no interference is required to be taken and supported the orders of all the three authorities. 10. I have considered the arguments advanced by the learned counsel for the parties and have perused the material available on record including the judgments relied upon by the learned counsel for the petitioner. 11. This court in the case of CTO v. M/s. Bombay Machinery Store, Kota (supra) has quashed the two Notifications/Circulars issued by the Commissioner dt 16.9.1997 as also 15.4.1998 and it is appropriate to quote paras 12 and 13 of the judgment:- "12. Therefore, the proposition of law by the learned Commissioner in the impugned circulars that "as per legal position, 'transit' gets over as soon as a reasonable time elapses for the consignee to elect whether he would take the goods away or leave them in the transporters premises, because at the conclusion of reasonable time there is deemed to be a constructive delivery of goods from the transporter to the consignee", cannot be said to be a correct legal position. The subsequent Circular dated 15.04.1998 purportedly issued to ameliorate the situation for dealers created by previous circular dated 16.09.1997, merely ended up extending the time limit of 10 days to 30 days without undoing the damage done by the previous circular by propounding a particular view of constructive delivery. The subsequent Circular dated 15.04.1998 purportedly issued to ameliorate the situation for dealers created by previous circular dated 16.09.1997, merely ended up extending the time limit of 10 days to 30 days without undoing the damage done by the previous circular by propounding a particular view of constructive delivery. In fact, the very power to issue such circulars by the learned Commissioner giving a particular interpretation of law purportedly binding on all the assessing authorities is doubtful. There is no specific provision in the Sales Tax Act, either under the RST Act or under the CST Act, empowering the Commissioner to issue such circulars, as against such powers conferred under Section 119 of the Income Tax Act on the Central Board of Direct Taxes. Even Section 119 of the Income Tax Act, which empowers the highest administrative body under the Act, namely CBDT, by way of its proviso restricts and provides that no such order, instruction or direction shall be issued so as to require any Income Tax authority to make a particular assessment or dispose of a particular case in a particular manner and such orders or instructions shall also not interfere with the discretion of the Commissioner (Appeals) in exercise of its appellate functions. Therefore, this court cannot countenance the issuance of such circulars by the Commissioner of Sales Tax, which unduly fetter with the quasi-judicial discretion of the assessing authorities, who are expected in law to give their findings of fact and interpret the statutory law in their own quasi-judicial discretion in accordance with the law as interpreted by the Supreme Court or jurisdictional High Court. The circulars issued by the Commissioner in the aforesaid manner like done vide Circulars dated 16.09.1997 and 15.04.1998 are likely to hamper and throttle such quasi-judicial discretion which vests with the assessing authorities. Therefore, the aforesaid circulars issued by the Commissioner aforesaid on 15.04.1998 (S. No. 1132A) and 16.09.1997 (S. No. 1115B) are in conflict with the Division Bench decision of this court in Guljag Industries Ltd's case (supra) and even otherwise they are found to be without any authority of law. Consequently, both these circulars are found to be ultra vires and are hereby quashed. 13. Consequently, both these circulars are found to be ultra vires and are hereby quashed. 13. In view of aforesaid, since there was no basis for the learned Commissioner to stipulate the time frame of 10 days or 30 days and thereafter, to require the assessing authority to invoke the concept of constructive delivery so as to deny the exemption of CST on subsequent sales made by transfer of documents of title to the goods made under Section 6(2) of the Act, though requisite conditions of Section 6(2) of the Act are fulfilled by the dealer and such circulars have already been held to be ultra vires and have been quashed and in absence of any other material justifying the denial of exemption under Section 6(2) of the Act to the assessee, the impugned order of the Tax Board allowing such exemption to the assessee is not required to be interfered with in the present revision petitions filed by the Revenue." 12. Taking into consideration the aforesaid view of this court, all the three authorities have applied the same two Circulars in disallowing the claim of assessee which in my view may not be proper taking into consideration that when the Commissioner was not justified in stipulating the time frame then the very basis goes out. 13. Taking into consideration the aforesaid and the finding that the goods were lying with the transporter for whatever reasons assigned before the lower authorities, in my view was just and proper and the authorities were not justified in holding that the goods were lying with the transporter for 41 days to 81 days is well reasoned on behalf of the assessee. 14. Accordingly, in my view the petition is required to be allowed and the orders of Tax Board is quashed and set aside.