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Legislative and Regulatory Update
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[No.118]
April 10,
2005 |
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Supreme
Court |
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MANU/SC/0260/2005
Appellant herein
entered into an agreement for setting up an oxygen plant for supply of oxygen to
the respondent,
an agreement was entered into between the parties whereby the modalities were
fixed. Since a dispute arose between the parties, arbitration clause was
invoked. An award was passed in favour of the appellant herein, the same was
challenged by the respondent. The matter was remitted back to the arbitrator for
fresh consideration. A division bench of the High Court maintained the order of
the single judge.
In appeal the Apex
Court, remarked that an award passed by an arbitrator can be set aside only on the
grounds specified in the Arbitration Act, 1940, it is not open to a court to reappreciate the entire
evidence. It was held that when awarding interest, the powers of the arbitrator
are not regulated by the civil procedure code, 1908.
The appellant a
former commissioner of police, Mumbai was arrested on allegations of involvement
in the counterfeit stamps and forgery case. Even though disciplinary proceedings
were initiated against him while he was in service, no further action was taken
and he was allowed to retire. After his retirement, he was arrested, since bail
application was consistently dismissed up till the High Court. An appeal was
filed before the Apex Court.
The case involved
interpretation and application of the Maharashtra Control of Organised Crime
Act, 1999 (MCOCA), it was considered whether a prima facie case indicating
culpable involvement of the accused had been established.
The Apex Court,
allowed interim bail to the accused, it was stated that some acts of omission
and commission on the part of a public servant may attract disciplinary
proceedings that may not attract a penal provision.
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High Courts |
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Maharashtra
The respondent
herein had filed a summary suit for recovery of money due on a credit card held
by the petitioner. The court allowed the application for leave to defend the
suit, however a condition for deposit of 50% of the suit amount was imposed
later on.
The petitioner filed
an application on the ground that once the application for grant of leave to
defend was allowed, it was not open to the court to impose a condition of
deposit later on.
The Bombay High
Court, dismissed the petition. It was remarked that the order granting leave to
defend must show appreciation of material, only the order wherein an exercise of
this nature is revealed can be termed as an order granting leave to defend.
Respondent was
engaged in the business of manufacturing and selling yarn and other allied
products. The petitioners approached the labour court with the grievance that
although they were designated as trainees, they had been discharging the duty of
workmen. They had completed 240 days in service and the action of terminating
their services without notice was unfair labour practice. The management
questioned the jurisdiction of the labour court on the ground that no
relationship of employer-employee existed between the parties. Industrial Court
upheld the stand the of the management.
The Bombay High
Court allowed the petition. It was held that since there is no intervention of a
third party, the relationship exists with the respondent alone, the petitioners
were directly engaged by the management.
Delhi
The appellants are
engaged in the business of running an Ice Cream Parlour where they serve ice
creams. Ice Creams are purchased in bulk and they were served in the form of
various preparations, after adding ingredients such as toppings, nuts, sharbat,
sugar syrup etc. The revenue authorities served a notice for payment of excise
duty on the ice creams sold, the demand was confirmed by the higher authorities.
An appeal was filed
primarily on the grounds that since the products sold by the appellants were not
separate and distinct from the ice creams from which they were made, the
activities undertaken by them could not be termed as ‘manufacture’ so as to
attract imposition of excise duty.
CESTAT, Northern
Bench, New Delhi allowed the appeal. It was held that the process of adding
toppings etc. did not amount to producing a new commercial commodity.
Andhra Pradesh
Petitioners are
residents of a locality in Secunderabad, they were using a road passing through
certain defence area for a long time. A writ petition challenging the action of
the Army authorities in not allowing the repair of the road was filed, further,
directions were sought to the authorities to allow buses to pass from the said
road.
The question for
consideration before the High Court was whether long and extensive use of the
road would confer any rights in the petitioners qua the right of passage through
defence land.
The Andhra Pradesh
High Court, dismissed the writ petition, it was held that the petitioners had no
vested rights and as such they cannot claim passage through defence land as a
matter of right.
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Telecom
Regulatory Authority of India (TRAI)
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Notification No.
310-3(1)/2003-Eco. Dated 31.03.2005: Further amending the Telecommunication
Tariff Order, 1999, the Telecom Regulatory Authority of India, has brought to
the fore The Telecommunication Tariff (Thirty Fifth Amendment) Order, 2005. The
amendment intends to make consequential changes in clause 3 under section III of
the Telecommunication Tariff Order, 1999, as earlier title of Schedule IV had
been changed to “Domestic Leased Circuits” and a new Schedule X, i.e.
International Private Leased Circuit (IPLC)-(Half Circuit) was added.
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RBI |
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IDMC
Circular No.
IDMD.No.11/08.12.00/2004-05 Dated 30.03.2005: The Reserve Bank after making due
consultation with the Government of India has decided to re-introduce 182-Day
Treasury Bills from the fiscal year 2005-06. The first auction of 182-Day
Treasury Bills will be conducted on April 6, 2005 and subsequent auctions on a
fortnightly basis on Wednesdays preceding the non-Reporting Fridays with payment
on non-Reporting Fridays.
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| Ministry of Commerce & Industry |
| Industrial Policy and Promotion
Notification No.
GSR191(E) Dated 24.03.2005: Receiving representations on behalf of M/s Singareni
Collieries Company Limited, Eastern Coalfields Limited and Central Mining
Research Institute to the Central Government that P-3 type Nitro-Glycerine based
explosives (Belgex Coal-R) are used in the Blasting Gallery method in
underground mines and there was no substitute available for P-3 type
Nitroglycerine based explosives in the market. Further, production of coal for
power generation has been seriously affected in the southern region of the
country, due to ban of Nitro-Glycerine based explosives. Therefore, the Central
Government has exempted M/s Singareni Collieries Company Limited, Eastern
Coalfields Limited, Central Mining Research Institute (CMRI) and units having
licence to manufacture P-3 type Nitro-glycerine based explosives (Belgex Coal-R)
for possession, transport, use and sale of P-3 type Nitro-glycerine based
explosives (Belgex Coal-R). The exemption is subject to certain conditions, as
to ceiling of production, production under proper supervision, security while
transportation, requirements as regards documentations and disposal of remaining
stocks.
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| Ministry of Finance |
| CBDT
Notification No.
122/2005 Dated 30.03.2005: Further amending the Income-tax Rules, 1962, the
Central Board of Direct Taxes has by virtue of this notification, brought about
the Income-tax (Ninth Amendment) Rules, 2005. The amendments were made in Forms
27A and 27B. These forms are for the purpose of furnishing information with the
statement of deduction/collection of tax at source filed on computer media.
Notification No.
121/2005 Dated 30.03.2005: The Central Board of Direct Taxes, vide this
notification, has specified Electronic Filing of Returns of Tax Collected at
Source Scheme, 2005. It shall be applicable to all persons filing returns of tax
collected at source on computer media under sub-section (5B) of section 206C of
the Income-tax Act, 1961. It consists of methodology for preparation and
furnishment of e-TCS Returns. It explicitly makes a mention of the procedure to
be followed by e-TCS intermediary and its general responsibilities. It also,
declares the powers of the e-filing Administrator and powers of the Board as
regard to revocation of the authorisation of an e-filing Intermediary.
Notification No.
120/2005 Dated 29.03.2005: The Central Board of Direct Taxes, vide this
notification, has made the Income-tax (Eighth Amendment) Rules, 2005, further
amending the Income-tax Rules, 1962. These amendments relate to computation of
deemed tonnage, and also notified Form No. 66 for submitting Audit Report under
clause (ii) of section 115VW of the Income–tax Act, 1961.
Central Excise
(Non-Tariff)
Notification No.
17/2005-NT Dated 31.03.2005: Further amending the Central Excise Rules, 2002,
the Central Government, has vide this notification made the Central Excise
(Second Amendment) Rules, 2005, which shall come into force from 1st of
April, 2005. The amendments were made in a few rules to bring about substantial
changes.
Customs
(Non-Tariff)
Notification
No. 30/2005-NT Dated 04.04.2005: The Central Government, vide this notification,
has made the Baggage (Amendment) Rules, 2005, further to amend the Baggage
Rules, 1998. Apart from other amendments, it has recognized the land routes,
between India and Pakistan, under annexure IV, to be used by the tourists moving
between these two countries.
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| Ministry of Consumer Affairs,
Food and Public Distribution |
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Consumer Affairs
Notification No.
GSR217(E) Dated 30.03.2005: Making the Bureau of Indian Standards (Appointment,
Terms and Conditions of Service of Director General) (Amendment) Rules, 2005
vide this notification, the Central Government has further amended the Bureau of
Indian Standards (Appointment, Terms and Conditions of Service of Director
General) Rules, 1987. These amendments relate to the pay and other allowances
meant for the post of Director General of the Bureau.
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| SEBI |
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Secondary
Market Division
Circular No. SEBI/CFD/DIL/CG/1/2005/29/3
Dated 29.03.2005: All Stock Exchanges had been directed to amend the Listing
Agreement by replacing the existing Clause 49 of the listing agreement with the
revised Clause 49. Also, they were asked to set up a separate monitoring cell
with identified personnel to monitor the compliance with the provisions of the
revised Clause 49 on corporate governance. Realising that all listed companies
and companies desirous of getting listed should achieve best corporate
governance status, it was felt that more time should be allowed to them to
conform to revised Clause 49 of the listing agreement. Hence, the date for
ensuring compliance has been now extended, vide this circular, upto December 31,
2005.
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| Ministry of
Power |
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Notification No.
GSR188(E) Dated 23.03.2005: The Central Government, vide this notification, has
made the Distribution of Electricity Licence (Additional Requirements of Capital
Adequacy, Creditworthiness and Code of Conduct) Rules, 2005, which shall come
into effect from 23rd of March, 2005. The rules focuse on additional
requirements of capital adequacy, creditworthiness and code of conduct, for
grant of licence for distribution of electricity under Sub-section (1) of
Section 15 of the Electricity Act, 2003.
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| International Legal
News |
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Cases
Administrative
Law
The decision of the
Surface Transportation Board to vacate the rate prescription governing the
transportation of coal is reversed where the explanation for disparate treatment
of shippers and carriers, bound by the same rate prescription, is arbitrary and
capricious.
Labor
& Employment Law
In a wrongful
termination suit, an arbitration award in favor of defendant-employer is
affirmed where plaintiff's claim, that the arbitration clause in her employment
agreement should not be enforced, is without merit.
Criminal
Law
A person who has
been found to be a sexually violent predator is precluded from challenging the
sufficiency of the evidence that he currently lacks the ability to control his
behavior when he refuses to be interviewed by the state's experts with respect
to the current status of mental abnormality which forms the basis of his
commitment.
Immigration
Law
Plaintiff's petition
for review is denied where the immigration judge's adverse finding that
warranted denial of asylum and withholding of removal warrant the denial of
Convention Against Torture relief as well.
Contract
In a
breach-of-contract claim, judgment as a matter of law in favor of defendant is
affirmed where the disputed agreement was invalid under section 566.1 of the
Michigan Compiled Laws since it modified a prior agreement but was neither in
writing nor supported by consideration.
Class Action
When issuing a
precertification communication to members of a supposed class, the court must
take reasonable steps to assure that consumers receive actual notice of their
right to grant or withhold consent of the release of personal information, and
that consent for such release must be by the consumer's positive act, rather
than by mere failure to respond.
News
Willis North America
Inc., third-largest insurance broker in the US, has agreed to pay $50 million in
restitution and to adopt new business practices to settle an investigation into
anticompetitive practices involving incentive fees in property and casualty
insurance sales. An investigation by New York Attorney General Eliot Spitzer and
New York state's insurance department found Willis steered insurance contracts
to companies with which it had fee arrangements. Joe Plumeri, Willis' chairman
and chief executive officer, said in a statement that “Willis has resolved
this matter with the New York attorney general and the New York insurance
superintendent, and we welcome the attorney general's conclusion that it was not
appropriate to file a complaint against our company based on the findings of his
investigation”
In what would be the
first execution in New England in 45 years, a serial killer is scheduled to die by lethal injection on the 11th of May this year. He has admitted killing
eight young women in Connecticut and New York in the 1980s. The earlier date
fixed for execution had to be postponed when doubts surfaced regarding the
competency of the convict to decide to forego further appeals and volunteer to
be executed. Chief U.S. District Judge Robert N. Chatigny had threatened to go
after the law license of the convicts’ attorney if he found that the lawyer,
in pressing for a prompt execution, had neglected or ignored evidence that his
client was incompetent. A state psychiatrist has said that the convict clearly
understands the consequences, he further said that has seen no evidence that
convicts’ decision was made out of despair and depression wrought by years of
close confinement on death row
In a first of its
kind trial, a North Carolina man has been convicted for spamming. He was
sentenced to nine years in prison, but the judge postponed the sentence while
the case is appealed. The jury recommended the nine year prison term after
convicting Jeremy Jaynes of pumping out at least 10 million e-mails a day with
the help of 16 high-speed lines, the kind of Internet capacity a 1,000-employee
company would need. Jaynes was convicted in November for using false Internet
addresses to send mass e-mail ads through an America Online Inc. server in
northern Virginia. Under Virginia law, sending unsolicited bulk e-mail itself is
not a crime unless senders mask their identities. Prosecutors and the judge said
the nine-year sentence was meant to deter others from sending illegal spam
Sony has obtained
access to MGM's library of over 4,000 films, which they plan to use for
video-on-demand services and new cable channels. MGM, best known in recent years
for the James Bond films, was the last major independent studio in Hollywood. A
total of $ 2.9 (£1.5bn) was paid in for acquiring the studio, further
outstanding debts were also assumed by Sony. The studio had been formed in 1924
after a merger between Metro Pictures Corporation, Goldwyn Pictures, and Louis B
Mayer Productions. The most famous films to come out of MGM include such
classics as The Wizard Of Oz and Gone With The Wind. All future films will be
co-produced by Sony
Pfizer Inc., the
world's largest drug maker, has announced that it was removing the arthritis
drug Bextra from the market. Following the announcement, Louisiana attorneys for
Bextra and Celebrex patients asked today a judicial panel in Washington, D.C. to
move all Bextra and Celebrex lawsuits in the country to one federal court, the
U.S. District Court for the Eastern District of Louisiana, which is in New
Orleans, for consolidation and management. Bextra was taken off the market
because the overall risk versus benefit profile for the drug is
"unfavorable," the Food and Drug Administration said in a statement.
Bextra was taken off the market because of its potential to cause a rare but
serious skin reaction, which is already disclosed on its label, Pfizer said.
Some cardiologists have also voiced concerns that Bextra causes increase in the
risk of Heart attack, Pfizer Inc. has however denied this.
Supreme Court
Justice Antonin Scalia has urged a blend of reason and faith. He asked members
of the legal profession not to write off traditional Christians as simple
minded. "Faith with no rational thought is false. What is irrational is to
reject (without question) the possibility of miracles," he told more than
300 people at a banquet on the eve of an annual Mass to honor and bless lawyers
and people who work with them. The justice, whose nine children include a
priest, quoted scripture passages warning that those wise in the world would not
accept Christianity.
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