( 1 ) DELAY condoned.

( 2 ) WE have heard Mr V. Lakshmikumaran, learned counsel for the petitioners at length.

( 3 ) RELIANCE is placed on circulars of 1973 and 1987. These circulars were not relied upon before the lower authorities. They are being relied upon for the first time in this Court. Parties cannot be permitted to rely upon the material which have not been relied upon before the lower authorities/courts. In this case before the lower authorities, reliance was placed only upon the circular of 1995. That circular, being of 1995, can be of no assistance to the petitioners as the period concerned is August 1990 to January 1991.

( 4 ) THIS Court has, in the case of CCE v. Dhiren Chemical Industries (I) clarified that when an exemption notification uses the words "has already been paid", the benefit of that notification would only be available if duty has, as a matter of fact, been paid and has been paid at the appropriate or correct rate. It is held that where the raw material is not liable to excise duty or to "nil" rate of duty then, as a matter of fact, no duty is paid and to such goods benefit of an exemption notification will not be available.

( 5 ) IT was, however, sough