V. Ramaswami, J.
1. The assessee is a textile mill at Coimbatore producing cotton yarn. In respect of an assessment under the Central Sales Tax Act for the assessment year 1966-67, the assessee claimed exemption on a turnover of Rs. 19,33,380.94 on the ground that they are depot sales. It also claimed that a sum of Rs. 1,78,243.56, which represented the excise duty paid by it to the Government of India, was not includible in the taxable turnover. The assessing authority rejected both these claims. On an appeal, the Appellate Assistant Commissioner of Commercial Taxes, while confirming the rejection of the claim of exemption on the turnover of Rs. 19,33,380.94, allowed the deduction of the amount representing the excise duty. The finding of the Appellate Assistant Commissioner was that there were no depot sales in respect of the turnover claimed on that account, but they were all inter-State sales liable to sales tax under the Central Sales Tax Act. In respect of the excise duty, the Appellate Assistant Commissioner relied on a decision of the Supreme Court in Nataraja Mudaliar's case  22 S.T.C. 376 (S.C), in which it was held that by virtue of Section 9(3) of the Central Sales Tax Act, 1956, read with Rule 6 of the Tamil Nadu General Sales Tax Rules, the excise duty paid was not liable to be included in the taxable turnover of the assessee. The assessee did not file any further appeal to the Tribunal in so far as the rejection of its claim in respect of the depot sales. While the matter stood thus, by Tamil Nadu Act 3 of 1969, Rule 6(f) was deleted with retrospective effect from 5 th January, 1957. In the view that by reason of the deletion of Rule 6(f) under which the excise duty was not to be included in the taxable turnover, the Board of Revenue considered that the order of the Appellate Assistant Commissioner deleting the excise duty from the taxable turnover was not correct and required to be rectified. Accordingly, the Board initiated proceedings under Section 34 of the Tamil Nadu General Sales Tax Act, 1959, and issued a notice to the assessee on 20th May, 1969. In response to this notice, the assessee filed written objections in which it not only contended that the exclusion of the excise duty paid from the taxable turnover was correct and not liable to be interfered with, but also reiterated its claim that the sum of Rs. 19,33,380.94 represented depot sales and not inter-State sales. Rejecting the contention of the assessee that the excise duty was not includible in the taxable turnover and relying on the retrospective repeal of Rule 6(f), the Board of Revenue held that the excise duty was also liable to be included in the taxable turnover. As regards the claim of the assessee for exemption on the ground of depot sales, the Board of Revenue observed that though the assessee was contending before the appellate authorities that the said disputed turnover represented depot sales, it allowed the orders of the Appellate Assistant Commissioner to become final without resorting to its right of appeal to the Tribunal and that there was no justifiable reason for the assessee in not preferring the appeal to the Tribunal and, in those circumstances, the Board rejected the assessee's claim for deduction and confirmed the provisional conclusion. Though the appellant had challenged the inclusion of excise duty in the taxable turnover in the grounds of appeal, they no longer survive for consideration in view of our recent decision in Pioneer Match Works v. State of Tamil Nadu  34 S.T.C 277. In that case also, the question for consideration was as to whether in spite of the deletion of Rule 6(f) with retrospective effect, the excise duty has to be deleted from the taxable turnover in so far as the Central sales tax assessments are concerned. this Court held that in spite of Section 10 of the Central Sales Tax (Amendment) Act, 1969, the excise duty was not liable to be deducted and that the Tamil Nadu Act 3 of 1969 neither offended Article 19(l)(f) of the Constitution nor was beyond the competence of the State Legislature. The order of the Board of Revenue including the excise duty paid in the taxable turnover was, therefore, perfectly in order.
2. It was then contended by the learned Counsel for the appellant that the Board of Revenue ought to have exercised its suo motu powers under Section 34 of the Tamil Nadu General Sales Tax Act, when the assessee pointed out the illegality of the inclusion of the disputed turnover of Rs. 19,33,380.94 in the taxable turnover. He had pointed out a number of circumstances in the objections filed by him, which, according to the assessee, showed that the disputed transactions were not inter-State sales but depot sales. There can be no doubt that an assessee to whom a notice was issued under Section 34 of the Act could invoke suo motu powers of the Board of Revenue, even to consider the legality of the order of the Appellate Assistant Commissioner in respect of those points, which were held against it. It is equally clear that in that case if the circumstances demand the exercise of sou motu power in favour of the assessee, the Board is under a duty bound to exercise the same and give relief to the assessee. Though it is a discretion of the Board of Revenue to invoke its powers in such circumstances under Section 34 at the request of the assessee that discretion will have to be exercised in a judicial manner and cannot be refused capriciously or arbitrarily. But we are not persuaded to hold in the facts and circumstances of this case that the Board of Revenue had either arbitrarily or capriciously rejected the claim of relief to the appellant. In fact, it cannot be said in this case that the Board has refused to exercise the jurisdiction vested in it. The Board pointed out that though specifically the appellant disputed the inclusion of this turnover, which it contended was depot sales and the finding of the assessing authority and the Appellate Assistant Commissioner was that they were not depot sales, but inter-State sales, they did not choose to appeal and question the finding of fact before the Tribunal. The Board of Revenue pointed out that there were no circumstances in this case which go to show that they were prevented from filing the appeal or that there was any supervening circumstance, which warranted the investigation of the facts afresh. The appeal was not filed by the assessee presumably because they were satisfied with the order of the Appellate Assistant Commissioner. In those circumstances, the Board of Revenue was in order in rejecting the claim of the appellant to go into the question of fact afresh and determine the issue. We, therefore, find no reason to interfere with the order of the Board of Revenue.
3. Accordingly, the appeal fails and it is dismissed with costs. Counsel's fee Rs. 250.