JUDGMENT
M.N. Chandurkar, C.J.
1. The substantial question which arises for consideration in this appeal relates to the determination of the stage at which goods can be treated as having been exported out of India for the purpose of drawback allowance claimable under Section 75 of the Customs Act, 1962 (Central Act 52 of 1962 – hereinafter referred to as the Act).
2. The facts of the case are not in dispute. The petitioner-appellant is a manufacturer of electrical accessories for automobiles and other engines. The appellant company had in February, 1974 filed shipping bills for export of certain items of goods manufactured by it and these goods were loaded on the ship M.V. Ratna Usha. Admittedly, the goods were assessed for export duty and examined by the customs authorities. However, after the cargo was loaded on the vessel, there was a fire in the ship and some of the goods were destroyed. The entire consignment of destroyed and damaged goods was unloaded. The goods sold by public auction to avoid the damaged goods being sold in the market as genuine goods. In the public auction, the goods were cleared by M/s. Lucas Indian Service, Ltd., Madras-2 which is a subsidiary company of the appellant and the goods were scrapped.
3. Later, the appellant company claimed drawback of the duty paid on articles which were originally imported and used in the manufacture of the exported goods. This claim for drawback has been disallowed by all the authorities under the Customs Act as well as by the Union of India on the ground that the goods shipped not having crossed the territorial waters of India cannot be treated as having been exported. The appellant company then filed Writ Petition No. 3727 of 1977 for quashing of these orders. The learned single Judge (Padmanabhan, J.) who dismissed the writ petition took the view that since India is defined in Section 2(27) of the Act as including the territorial waters of India, it was necessary for the goods being exported that they should be taken out of India, namely, beyond the territorial waters of India. Since admittedly the goods had not gone beyond the port of Madras, the learned Judge held that the goods cannot be said to have been exported. The learned Judge having dismissed the writ petition, the writ petitioner has filed this appeal.
4. Mr. A.R. Ramanathan, appearing on behalf of the appellant company has contended that though undoubtedly India has been defined as including the territorial waters of India, in so far as the exporter is concerned, the export must be deemed to have been completed when the goods are placed on the ship in pursuance of the clearance given under section 51 of the Act. It is pointed out that in so far as the value of the goods is concerned, the Government of India has already earned foreign exchange and it cannot therefore be said that the goods were not exported. The argument is that the definition section 2 of the Act expressly provides that the definitions in section 2 have to be read subject to the words “unless the context otherwise requires”. The learned counsel therefore contended that since the goods passed but of the control of the exporter the moment clearance is given for the exportation of the goods under section 51. The goods must be treated as having been exported and the definition of the term “India” must in that context be read as referring to the landmass of the country, and it was not necessary for the goods to cross the territorial waters of India before the goods can be said to have been exported.
5. “India” in defined under the General Clauses Act, 1987 with reference to three different period of time, namely, (i) before the establishment of the Dominion of India (ii) after the establishment of the Dominion of India, and (iii) in respect of any period after the commencement of the Constitution. In respect of the last mentioned period, “India” is defined as meaning “all territories for the time being comprised in the territory of India”. Relying on the definition, it is pointed out that once the goods are loaded on the country and the territory of India. It is pointed out that the territory of India as mentioned in article 1(3) of the Constitution, comprised (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. Thus, according to the learned counsel, when the goods are loaded on the ship in the sea, they have gone beyond the territory of India and must therefore be treated as having been exported.
6. Mr. P. Narasimhan, learned Senior Central Government Standing Counsel, appearing for the respondents has vehemently contended that since India is defined as including the territorial waters of India, the goods cannot be said to have been exported unless they cross the territorial waters. Reliance is placed on the definition of the term “export goods” found in section 2(19) of the Act. The said section defines “export goods” as meaning any goods which are to be taken out of India to a place outside India. It is argued by the learned counsel that when the definition of the term “export goods” referred goods which are to be taken out of India to a place out of India, we must substitute the definition of “India” and must read the definitions of the term “export goods” as meaning those goods which are to be taken beyond the territorial waters of India to a place also beyond the territorial waters of India.
7. In order to decide these contentions, a reference is necessary to certain provisions of the Act. Section 2(18) of the Act defines “export” as meaning, with its grammatical variations and cognate expressions, taking out of India to a place outside India. We have already referred to the definition of the term “export goods”. The definition of “India” is of an inclusive nature and says that India includes the territorial waters of India.
8. The concept of territorial waters of India is to be found in the statutory provision in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and other Maritime Zones Act, 1976 (hereinafter referred to as the 1976 Act). Under section 3 of the 1976 Act, it is declared that “the sovereignty of India extends and has always extended to the territorial waters of India (hereinafter referred to as the territorial waters) and to the seabed and suboil underlying, and the air space over such waters”. Sub-section (2) of section 3 gives the limit of the territorial waters and it reads as follows :-
S. 3(2) “The limit of the territorial waters is the line every point of which is at a distance of twelve nautical miles from the nearest point of the appropriate baseline”.
We may also refer to Section 4 of the 1976 Act which may be relevant to the question which has arisen before us. Under Section 4, there is a statutory right on all foreign ships to enjoy the right of innocent passage into the territorial waters. The explanation in section 4(1) explains what is innocent passage and says that the passage is innocent so long as it is not prejudicial to the peace, good order or security of India. Section 4(1) with its explanation reads as follows :-
“S. 4 : Use of territorial waters by foreign Ships. – (1) Without prejudice to the provisions of any other law for the time being in force, all foreign ships (other than warships including submarines and other underwater vehicles) shall enjoy the right of innocent passage through the territorial waters.
Explanation. – For the purpose of this section, passage is innocent so long as it is not prejudicial to the peace, good order or security of India.”
We are not concerned with the concept of “contiguous zone of India” which is defined in this Act.
9. We may also refer to section 2(16) of the Act which defines “entry”. It reads as follows :-
‘S. 2(16) : “Entry” in relation to goods means an entry made in a bill of entry, shipping bill or bill of export and includes in the case of goods imported or to be exported by post, the entry referred to section 82 or the entry made under the regulations made under section 84.’
It may be pointed out that the definition of “entry” includes reference to import or export by post.”Import” is also defined in Section 2(23) as meaning, with its grammatical variations and cognate expressions, bringing into India from a place outside India.
10. The relevant statutory provisions with regard to levy of customs duties is to be found in section 12(1) which refers to the levy of customs duty on excisable goods, whether they are imported or exported. Section 12(1) reads as follows :-
“S. 12(1) : Except as otherwise provided in this Act, or any other law for the time being in force, duties of customs shall be levied at such rates as may be specified under the Customs Tariff Act, 1975, or any other law for the time being in force, on goods imported into, or exported from, India.”
11. Section 14 deals with valuation of goods for purposes of assessment. Section 15 deals with the dates for the determination of rate of duty and tariff valuation of imported goods. Since we are dealing with the case of export, we may refer to section 16 of the Act. Section 16(1) and (2) reads as follows :-
“S. 16(1) : The rate of duty and tariff valuation, if any, applicable to any export goods, shall be the rate and valuation in force –
(a) in the case of goods entered for export under Section 50, on the date on which a shipping bill or a bill of export in respect of such goods is presented under that section;
(b) in the case of any other goods, on the date of payment of duty :
Provided that if the shipping bill has been presented before the date of entry outwards of the vessel by which the goods are to be exported, the shipping bill shall be deemed to have been presented on the date of such entry outwards.
(2) The provisions of this section shall not apply to baggage and goods exported by post.”
Under this section read with Section 12 of the Act, the duty is payable at the rate of duty and tariff valuation applicable to any export goods in the case of goods entered for export under section 50, on the date on which a shipping bill or a bill of export in respect of such goods is presented under that section, and in the case of any other goods, on the date of payment of duty. The proviso says that if the shipping bill has been presented before the date of entry outwards of the vessel by which the goods are to be exported, the shipping bill shall be deemed to have been presented on the date of such entry outwards. Sections 50 and 51 of the Act which deal with clearance of export goods, read as follows :-
“S. 50(1) : The exporter of any goods shall make entry thereof by presenting to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export in the prescribed form.
(2) The exporter of any goods, while presenting a shipping bill or bill of export, shall at the foot thereof make and subscribe to a declaration as to the truth of its contents.
S. 51. Where the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance and loading of the goods for exportation.”
12. Section 50 laid down a pre-condition before the goods are exported. The exporter of the goods has to make an entry by presenting to the proper officer in the case of goods to be exported by a vessel or aircraft, a shipping bill and in the case of goods which are to be exported by land, a bill of export. For both the kinds of bills, a form has been prescribed. The exporter also while presenting a shipping bill or a bill of export has to make a declaration as to the truth of the contents of the entry.
13. Section 51, in our view, is an important provision. Under the provision, if the proper officer is satisfied that any goods entered for export are not prohibited goods and the exporter has paid the duty, if any, assessed thereon and any charges payable under the Act in respect of the same, he may make an order permitting clearance and loading of the goods for exportation. Once the exporter has complied with the provisions of these sections, so far as he is concerned, whatever is required to be done for the purpose of exportation of the goods has been done by him. As a matter of fact, Section 51 deals with the last stage upto which the exporter has control over the goods, and once the goods have been cleared and directed to be loaded for the purpose of exportation and the goods are subsequently loaded, the goods passed out of the control of the exporter.
14. At this stage, we may refer to section 75 of the Act which deal with drawback allowance. Section 75(1) is the repository of the right to got drawback allowance on import materials used in the manufacture of the goods which are exported. This section reads as follows :-
“S. 75(1) Where it appears to the Central Government that in respect of goods of any class or description manufactured in India and exported to any place outside India, a drawback should be allowed of duties of customs chargeable under this Act on any imported materials of a class or description used in the manufacture of such goods, the Central Government may, by notification in the Official Gazette, direct that drawback shall be allowed in respect of such goods in accordance with, and subject to, the rules made and subject to, the rules made under sub-section (2).”
This section, therefore, clearly provides that drawback is permitted in respect of goods which are manufactured in India and exported to any place outside India. The question now is when section 75(1) of the Act refers to goods exported outside India, what is the point of time when it can be said that the goods have been exported to any place outside India. Normally when once the goods are put in the ship, they will reach the country of destination. In this process, they will undoubtedly cross the territorial waters. But in a certain contingency such as the one which has arised in this case, namely, after having been loaded on the vessel after being cleared by the proper officer under section 51 and after having left the landmarks territory of India and were undoubtedly in the process of being carried to the country of destination, could it be said that the goods have been exported to any place outside India.
15. The Drawback Rules made under Section 75(2) of the Act are themselves not determinative of the controversy which arises in this case. These Rules are known as the Customs and Central Excise Duties Drawback Rules, 1971 and found at page 163 of Vol. I, Sixth Edition, of Customs Manual. In rule 2(a) of the said rules, there is a definition of “drawback” given as follows :-
“Drawback” in relation to any goods manufactured in India and exported, means –
(i) the rebate of duty chargeable on any imported materials or excisable materials used in the manufacture of such goods in India.”
When the definition of “drawback” refers to goods exported, in rule 2(c) the definition of “export” has been given. The definition of “export” reads as follows :-
“Export” within its grammatical variations and cognate expressions, means taking out of India to a place outside India and includes loading of provisions or store or equipment for the use on board a vessel or aircraft proceeding to a foreign port.”
The inclusive part of the definition is not relevant for our purpose. The substantive part of the definition is nothing but a reproduction of the definition found in the Act itself. Nothing therefore turns on these rules in so far as we are concerned with the determination of the question as to whether by loading the goods in the ship after having been cleared under section 51 of the Act, an export has taken place.
16. Normally, undoubtedly, where an Act defines any term used in the body of the Act, one must substitute the definition in places where the term defined is used. In accordance with this general principle of construction of statues, on the definition of “export” when it refers to taking out of India to a place outside India, if the contention of the learned counsel for the Department is accepted, then undoubtedly “taking out of India” will have to be read as meaning “taking into a place outside the territorial waters of India”. The question, however, is whether in all cases where the court is concerned with the question as to whether there is an import or export, we must necessarily construe India as referring to not only the landmarks of the country, but also including the territorial waters of India.
17. The controversy as to when goods can be said to have been imported has been the subject of a series of decisions of different courts, and we would rather refer to these decisions than traverse once again, the same ground which is covered by the decisions while construing the concept of import. The question as to when goods can be said to have been imported came up for consideration for the first time in this Court in K.R. Ahmed Shah v. Additional Collector of Customs, Madras & Others [1981 ELT 153 (Mad.)]. The learned Judge (Padmanabhan, J.) after referring to the decision of the Supreme Court in Express Mills v. Municipal Committee and an unreported Division Bench decision of this Court in Writ Appeal No. 84 of 1968, culled out the following principles with regard to the meaning the word “import” in Sections 2(23) of the Act. In paragraph 11, the learned Judge observed as follows :-
“The principles that could be deducted from the above decisions can be summarised as follows :-
(1) Goods can be said to be imported to the country only when they are incorporated in and mixed up with the mass of goods in the country.
(2) It cannot be said that the moment an aircraft lands at an international airport in this country, the goods are imported and to hold otherwise would create inconvenience and confusion and would render the goods which are in the aircraft meant to be carried to other countries subject to the Customs laws of this country.
(3) Once a passenger enters the customs area and makes a declaration of what all he had brought and does not make any attempt to take the goods across the customs barrier in violation of the customs laws of this country, “it cannot be said that he had imported or attempted to import any goods contrary to any prohibition imposed by and under the Act or any other law for the time being in force.”
We are referring to the decision which deals with the concept of import because just as in the case of export of goods outside India and contention is that goods must go beyond the territorial waters, it has been the contention of the Department sometimes, as and when it suits the Department that so far as import is concerned, the import is complete the moment the goods have been brought within the limits of the territorial waters. This question assumers some importance when at the time of entry into territorial waters, the goods are either exempted from customs duty or the customs duty is less and at the point when they cross the customs barrier, either the exemption is taken away or the import duty has been enhanced. In such cases, courts have been called upon to decide as to when import takes place. In the decision referred above this court took the view that goods can be said to have been imported into the country only when they are incorporated in the mixed up with the mass of goods in the country.
18. The Gujarat High Court was called upon to construe the meaning to be given to “India” in the context of section 12 of the Act. As already pointed out, section 12 of the Act is a charging section, and it provides for a levy on goods imported into or exported from India. In Prabhat Cotton and Silk Mills Ltd. v. Union of India [1982 ELT 203 (Guj.)], the Division Bench of the Gujarat High Court positively took the view that when section 12 refers to “exportation from or importation into” of goods, the reference is to the landmass of India and onto to the territorial waters of India. The Division Bench pointed out that if the construction that India is to be equated with the area upto the territorial waters of India, then even a ship which will stray into the territorial waters or when the ship enters the territorial waters and changes it course, turns back and leaves the territorial waters before landing the goods on the landmass of India, would also have to be considered as importing goods into India. There it was the importer who took the stand that the import takes place when the ship entered the territorial waters. The question arose in the context of the valuation of the goods for the purpose of assessment to import duty. The department wanted certain landing charges to be included as a part of the assessable value of the articles. The argument of the assessee was that since the goods were imported as soon as they crossed the territorial waters the taxable event occurs at the point of time when the goods enter the Indian territorial water and the price of the goods has to be determined in the context of the said circumstance. Thus, according to the importer, the goods would have to be valued at the point of time when the vessel entered the Indian Customs water, and so the valuations to be made on the basis of the price at which the same would be sold and offered for sale on the vessel before the goods are unloaded on the port, and since the valuation will have to be made on the basis of the valuation as on board of the ship at the point of time when the ship enters the Indian customs waters much before the goods are unloaded on the dock of the port, the charges payable to the Port authorities upon the unloading of the goods on the dock known as the landing charges cannot be included in the assessable value. Repelling that contention, the Division Bench after quoting section 12 of the Act observed as follows :-
‘What requires to be underlined is a reference to ‘goods imported into, or exported from, India’. ‘Surely, the expression ‘goods exported from India’ cannot mean goods exported from the territorial waters of India. It cannot mean goods exported from the territorial waters of India. It cannot means goods exported from the hypothetical line drawn on the boundary of the Indian territorial waters. It is susceptible to only one interpretation, viz., the goods exported from the ‘landmass’ of India. Once this view if taken in the context of exportation from India, the expression ‘imported into’ which forms a part a of the expression ‘imported into or exported from India cannot carry any other meaning : the expression India must mean landmass of India whether it is in the context of ‘exportation from India’ or ‘importation into India’ of goods within the meaning of dutiable goods in the context of section 12(1) of the Act. To construe the expression ‘goods exported from India’ to mean goods exported from the landmass of India on the one hand, and to interpret the expression following on its heels, the goods imported into India to mean goods imported into territorial waters of India and not the landmass of India would introduce an anachronism and so incongruity. Section 12 must, therefore, be read in a consistent manner so that the same meaning can be assigned to the expression ‘India’ when it is used in the context of importation of goods into India. We have, therefore, no hesitation in holding that section 12 refers to exportation from, or importation into, of goods with reference to the landmass of India and not with reference to the territorial waters of India. Once we reach this conclusion, the main plank of the submission urged on behalf of the petitioners must collapse.”
We are in respectful agreement with the view taken by the Gujarat High Court that when section 12 of the Act refers to goods exported from India, it does not mean goods exported from the territorial water of India. The export of the goods clearly takes place on the landmass of the country. If the construction canvassed on behalf of the respondents is to be accepted, then there is nothing in the Customs Act to indicate what is the position of the goods from the time of loading the goods on the ship till they cross the boundary line of the territorial waters. Within the region between the boundary of the landmass of India on one side and the outer limit of the territorial waters the goods are beyond the control of the exporter. The customs duty is payable on export, and if export takes place only at the place where the territorial waters of India cease, then strictly speaking the customs duty will have to be collected only at that place which is almost an impossibility.
19. We may also refer the decision of the Kerala High Court in Shri Ramalinga Mills (P) Ltd. v. Assistant Collector of Customs [1983 ELT 65 (Ker.)]. The learned Judge after elaborate discussion of the provisions of the Act and the decision of the Supreme Court in In re : Sea Customs Act (1878) (AIR 1963 SC.1760) observed as follows :-
“In this view of the matter, I am clearly of opinion that the mere entry of the vessel with the goods into the territorial waters or even berthing in the port of Bombay will not, vis-a-vis the petitioners importers at Cochin, constitute at completed import of the goods at Bombay. That was a matter of mere transit. Importation took place only when the vessel crossed the customs barriers at the intended port of importation, namely, Cochin.”.
20. We may with advantage quote a passage from an Australian decision on which the learned Judge of the Kerala High Court has relied. In the Australian decision. The Qureen v. Bull and Others [1974 (48) A.L.J.R. 232], the concept of import was elaborately explained as follows :-
“However, whether or not the sea within three nautical miles of the coast should be regarded as part of Australia for other purposes, it is in my opinion, clear that goods are not imported simply by bringing them within the three miles limit. It does not conform to ordinary usage to say that goods are imported into a place if they are brought there in the course of transit but with no intention that they should be unloaded there. For example, in ordinary understanding goods would not be thought to have been imported into Australia if they were carried through the waters within three miles of the Australian coast by a ship which did not put into port. Even if goods are brought into port, they are not necessarily imported, for example, a cargo being carried from England to New Zealand is not imported into Australia when the ship on which it is carried puts into an Australia and port on route”.
21. In the same decision, Barwick, C.J., had observed as follows :-
“however, in any case, it is to my mind a completely impractical concept that importation of goods takes place so soon as and whenever the ship carrying them enters the marginal seals, perhaps only to leave them against for navigational purposes as it moves towards the port of discharge.”
22. A Division Bench of the Delhi High Court also took a similar view of the concept of ‘import’ in Jain Shuda Vanaspathi Ltd. v. Union of India [1983 ELT 1688 (Del.)]. In that case, it was the argument of the importer that the ship having entered the territorial waters on 7.10.1980, the chargeability of the duty must be determined as on that date, and since an exemption notification was in operation on that date, the rate of duty should be considered as nil. This argument was rejected. In paragraph 23 of the judgment, the Division Bench observed as follows :-
“Import” therefore must necessarily mean at a point of time when the goods are to be off-loaded from the ship so that thereafter they form a part of the mass of goods in the country of consumption”.
In paragraph 37, while observing that the goods coming within the territorial waters were undoubtedly subject to the control of the customs, the Division Bench pointed out that the entry in the territorial waters though amounting to import, will not for fiscal purposes determine the date and the time for the purpose of calculating the rate of duty which is leviable under section 15 of the Customs Act. The judgment also made it clear that it was settled law that unless the goods are brought into the country for the purpose of use, enjoyment, consumption, sale or distribution or incorporated into or got mixed up with the totality of the properties of the country, they cannot be said to have been imported, and as such it cannot be said that the moment the aircraft passed through the country or a ship entered the territorial waters, the importation takes place. Importation can only be when the goods crossed the customs barriers.
23. In another decision in Aluminium Industries Ltd. v. Union of India [1984 (16) ELT 183 (Kerl)], the Kerala High Court also took a similar view.
24. The concept of import and export once again came up for consideration before a Division Bench of this Court in M. Jamal Company v. Union of India [1985 (21) ELT 369 (Mad.)]. After referring to the decisions cited above and noticing the controversy in the different courts, the Division Bench pointed out that the object of the Act was not to tax the goods which are passing, through the territorial waters, but only those which got mixed up with the mass of goods in India. The Division Bench then observed in paragraph 19 as follows :-
“It is thus abundantly clear that the definition of the word “India” as including the territorial waters under Section 2(27) of the Act, is compatible with S. 12(1) of a the Act. The context of S. 12(1) clearly requires that the word ‘In India’ in this section is not given the meaning it has as per S. 2(27) of the Act. It should instead be given the meaning as per the General Clauses Act, viz., the territory of India.”
This decision specifically deals with the meaning to be given to the word ‘India’ occurring in Section 12(1) of a the Act which is also the question arising in this case before us. We do not see any reason why we should not accept the view taken by the Division Bench especially when it appears to us that when dealing with the question of export, the concept of exporting out of the territorial waters of India does not fit in with the scheme of the Act. The provisions of sections 50 and 51 of the Act, are in our view determinative of other time when the process of export commences, and when the good are loaded into the ship after being cleared by the appropriate officer, they must be treated as having been exported so far as the exporter is concerned.
25. We have referred earlier to the provisions of Section 4 of the 1976 Act. It is possible that several foreign ships may be passing through the territorial waters enjoying the right of innocent passage, and if the constriction placed by the department that import takes place the moment a vesel crosses the territorial waters is accepted, then these foreign ships which are enjoying a statutory right will also be brought within the net of the Act, when obviously that is not the intention of the Act at all.
26. Mr. P. Narasimhan relied on a Full Bench decision of the Bombay High Court in Apar Private Ltd. v. Union of India – 1985 (22) ELT 644 (Bom.) = (1985 Vol. 6 Excise & Customs Cases 241). There is no doubt that the Full Bench has taken a positive view that under the Customs Act, 1962, the event of importation occurs when the goods from a place outside India enter the territorial waters of India. This decision undoubtedly is entitled to be noticed. But so far as we are concerned, we are not dealing with the case of import and it is to be pointed out that the Full Bench of the Bombay High Court was not inclined to apply the logic of this decision to a case of export. One of the arguments raised before the Full Bench was that if the goods become imported goods as soon as they entered the territorial waters of India, the goods also cannot become export goods until they are removed from the landmass and pass out of the territorial waters of India. This argument was rejected as will be clear from the following observation paragraph 37 :-
“It is argued that if the goods become imported goods as soon as they enter the territorial waters of India, the goods cannot become export goods until they are removed from the landmass and pass out of the territorial waters of India. We do not see how that follows. In the case of import, they are words used are ‘imported goods’ and in the case of export, they are ‘export goods’ and not exported goods. The duty in the case of export goods has to be paid before they are exported; in the case of imported goods, they become liable to duty no sooner than they are imported. While in the case of import the duty is attracted if the goods become imported goods, in the case of goods sought to be exported, duty has to be paid when they are still ‘export’ goods and not after they are exported. This distinction has been made and maintained throughout the Customs Act. An examination of these provisions further fortifies our conclusions that the goods become imported goods no sooner than they are brought from outside the country into the territorial waters of India and the taxable event is not postponed till a bill of entry is filed or till they are sought to be cleared for home consumption.”
Therefore, even though the Full Bench of the Bombay High Court took a view which runs counter to the decisions which we have earlier cited with reference to the concept of import, even the learned Judges who constituted the Full Bench have clearly taken the view that that analogy will not apply to the case of export and that the Act clearly makes a distinction between import of goods and export of goods. We are, therefore, inclined to take the view in this case that the goods having been loaded in the ship after they were duly cleared under Section 51, the goods must be described as goods exported for other purpose of Section 75 of the Act. For the purpose of Section 75 of the Act, when Section 75 refers “to any place outside India”, it would be enough for the exporter to show that the goods were out of his control and were on their way to the country of destination.
27. In the view which we have taken, the appellant is clearly entitled to the drawback allowance and the learned single Judge was in error in rejecting the writ petition. Consequently, the order dismissing the writ petition by the learned single Judge and the orders of the authorities rejecting the request of the appellant for drawback allowance are set aside. The authorities are now directed to determine the claim of the appellant on merits. The writ appeal is accordingly allowed and the appellant will be entitled to its costs of this appeal. Counsel’s fee Rs. 500/-.
28. Mr. P. Narasimhan, learned counsel for the respondents, orally prays for leave to appeal, to the Supreme Court of India. Having regard to the fact that the law on this question appears to have been settled by several courts, we do not think that this is a fit case in which leave should be granted. Oral application for leave is accordingly rejected.