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6. We have carefully considered the rival submissions.

6.1 There are two issues to be decided in this case. The first issue is whether the refund claim of the appellant HPCL is time barred or not. The second issue is whether the refund claim attracts the bar of unjust enrichment.

6.2 As regards the first issue, HPCLs contention is that since the matter relating to their eligibility to benefit of notification No.67/95 was pending before the adjudicating authority and subsequently before the appellate authority, the payment made by them should be considered as payment under protest and reliance has been placed on the decision of the Apex court in the Mafatlal Industries case. It will be useful to see what the Apex Court said in the said case with regard to this issue. Paragraphs 84 to 86 of the said decision is reproduced verbatim below:-

(2) On receipt of the said letter, the proper officer shall give an acknowledgement to it.

(3) The acknowledgement so given shall, subject to the provisions of the sub-rule (4), be the proof that the assessee has paid the duty under protest from the day on which the letter of protest was delivered to the proper officer."

85. The rule no doubt requires the assessee to mention the grounds for payment of the duty under protest but it does not empower the proper officer, to whom the letter of protest is given, to sit in judgment over the grounds. The assessee need not particularise the grounds of protest. It is open to him to say that according to him, the duty is not exigible according to law. All that the proper officer is empowered to do is to acknowledge the letter of protest when delivered to him - and that acknowledgement shall be the proof that the duty has been paid under protest. A reading of the rule shows that the procedure prescribed therein is evolved only with a view to keep a record of the payment of duty under protest. It is meant to obviate any dispute whether the payment is made under protest or not. Any person paying the duty under protest has to follow the procedure prescribed by the Rule and once he does so, it shall be taken that he has paid the duty under protest. The period of limitation of six months will then have no application to him.

86. We may clarify at this stage that when the duty is paid under the orders of Court (whether by way of an order granting stay, suspension, injunction or otherwise) pending an appeal/reference/writ petition, it will certainly be a payment under protest; in such a case, it is obvious, it would not be necessary to lodge the protest as provided by Rule 233B. A reading of the said decision makes it absolutely clear that to consider the payment of duty as payment under protest, the procedure prescribed under the statute must be followed. The only situation where this is not required is when the duty is paid under the orders of the Court or appellate authority during the interlocutory stage of stay, suspension, injunction or otherwise. In the present case before us, HPCL paid the duty on their own pending adjudication of the matter and they did not follow the procedure prescribed for payment of duty under protest. It was not on account of any directions from the court or appellate authority the payment of duty was made. If that be so, the payment of duty by HPCL can not be considered as payment under protest at all and we hold accordingly.

6.3 There is another reason to come to this conclusion. In The J.K.Cotton Spinning and Weaving Mills Co. Ltd. Vs. State of U.P. and Ors. [1961 AIR 1170], the honble Apex Court laid down the principle of statutory interpretation as follows:-

The rule is that whenever there is a particular enactment and a general enactment in the same statute and the latter taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. Applying this rule of construction, in case of a conflict between a specific provision and a general provision, the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the specific provision. In the present case, it is an admitted position that the appellant HPCL did not follow the procedure for payment of duty under protest prescribed in rule 233B of the Central Excise Rules, 1944 or other provisions prescribed at the relevant time. Having failed to do that they cannot claim that merely because they had challenged the assessment order dated 30-01-2002, the payment made much earlier to the assessment order should be deemed as payment under protest. It is a well-settled statutory principle that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other. Honble Supreme Courts decision in Chandra Kishor Jha Vs. Mahabir Prasad & Ors. [(1999) 8 SCC 266] refers.