ORDER

1. The respondents loaded polyester fabrics on the vessel Cherry Chentak on 3-1-1983 for export to Aden and Jeddah. The vessel set sail from Bombay, but on 7-3-1983, while still within the territorial waters of India, sank. The cargo loaded by the respondents was destroyed.

2. The respondents contended, even so, that they had exported the said cargo and were entitled to duty drawback thereon under the Customs and Central Excise Duties Drawback Rules, 1971. The claim and the appeal there from having been rejected, the respondents filed a writ petition before the High Court of Gujarat. The writ petition was allowed and the appellants are in appeal.

3. "Drawback" is defined by Rule 2(a) of the said Rules. Drawback is available to "goods manufactured in India and exported". For the purposes of the Rules, "export" is defined to mean, "taking out of India to a place outside India".

4. Learned counsel for the appellants contends that, in the instant case, there was no export as contemplated by the said Rules inasmuch as the said cargo had not been taken out of India to a place out of India; in fact, the vessel had sunk and the said cargo was destroyed within the territorial waters o