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[No.46]
April 10, 2003 |
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Cases :-Source:WestlawInternational.com
Denying certiorari, the United States Supreme Court let stand a Texas appellate court's decision that the entry of a narcotics dog inside a business premises did not exceed the scope of a warrant to search the business for evidence relating to the distribution of counterfeit merchandise. The dog signaled a positive alert for narcotics on a night stand in the defendant's bedroom, and then on a locked safe. Believing that business records might be located inside the safe, the officers asked the defendant to open it. He refused, and the police pried it open. Business records and cocaine were found in the safe. Drug paraphernalia and a semiautomatic pistol were also found in the area.
The defendant's petition for certiorari argued that the Fourth Amendment's prohibition against general exploratory search warrants is violated when peace officers bring a drug- detecting dog to participate in a search when drugs are not among the items specified for seizure in the search warrant.
The Texas appellate court distinguished United States v. Thomas, 757 F.2d 1359, 1367 (C.A.2-N.Y. 1985), which held that the warrantless use of a drug- sniffing dog outside a defendant's residence constituted a search that impermissibly intruded on the defendant's legitimate expectation of privacy. The Texas appellate court stated that the facts of the case at bar were distinguishable because there was evidence in the record that the officer would have searched the safe for business records, as specified in the warrant, regardless of the narcotics dog alert. The appellate court concluded in the case at bar that it was reasonable for the officers to believe, based on the totality of the circumstances, that the night stand might contain items described in the warrant, such as: "documents and records" pertaining to counterfeit merchandise, ownership of the business, or names, addresses, and telephone numbers of employees and/or any other witnesses with information concerning the operation of the business. (Case below: Amir v. State, 2002 WL 58571 (Tex.App.-Hous. (1 Dist.) 2002), pet. for discretionary rev. refused, 2002 WL 31082067 (Tex.Crim.App. 2002).)
To read the decision of the Court of Appeals for the First District of Texas, use FIND with the citation 2002 WL 58571.
To read the Second Circuit's decision in Thomas, use FIND with the citation 757 F.2d 1359.
To read the United States Supreme Court's order denying certiorari, use FIND with the citation 2003 WL 1791859.
Amir v. Texas
The United States Supreme Court has held that a district court erred in refusing to compel arbitration of treble damage claims under the Racketeer Influenced and Corrupt Organizations Act (RICO) on the basis that the relevant arbitration agreement prohibited the award of punitive damages.
The issue arose when physicians brought a lawsuit against health maintenance organizations (HMOs) for alleged violations of RICO, other federal and state statutes, and common law. Because the physicians were bound by contract to arbitrate disputes with their HMOs, the HMOs moved to compel arbitration. While the district court found that the arbitration agreements required the physicians to arbitrate at least some of their claims against the HMOs, the district court interpreted those agreements that contained damage limitations precluding the award of punitive or exemplary damages as prohibiting the award of RICO treble damages. It held that arbitration would not be compelled where the physicians might not be able to obtain meaningful relief in an arbitration forum for allegations of statutory violations. On appeal, the Eleventh Circuit adopted the district court's ruling on the issue.
Writing for the Court, Justice Scalia noted that it was unclear whether the agreements actually prevented the arbitrator from awarding treble damages under RICO. Citing prior Supreme Court precedents that have placed different statutory treble damages provisions on different points along the spectrum between purely compensatory and purely punitive awards, the acknowledgement in prior Supreme Court cases that RICO treble damages are remedial in nature, and the uncertainty surrounding the parties' intent with respect to the contractual term "punitive," Justice Scalia said that the application of the disputed term to the RICO claims "is, to say the least, in doubt."
The Court's decision in Vimar Seguros y Reaseguros, S.A. v. M/V SKY REEFER, 515 U.S. 528, 115 S.Ct. 2322, 132 L.Ed.2d 462 (1995), counsels that the Justices should not, "on the basis of 'mere speculation' that an arbitrator might interpret" ambiguous agreements "in a manner that casts their enforceability into doubt, take upon ourselves the authority to decide the antecedent question of how the ambiguity is to be resolved."
Because the Court did not know how the arbitrator would construe the remedial limitations of the agreements, the questions "whether they render the parties' agreements unenforceable and whether it is for the courts or arbitrators to decide enforceability in the first instance are unusually abstract," Justice Scalia said. It would therefore be premature for the Court to address those issues. The proper course, under the circumstances, is to compel arbitration, Justice Scalia concluded. All members of the Court joined in the opinion with the exception of Justice Thomas, who did not participate in the decision. (Reversing and remanding In re Humana Inc. Managed Care Litigation, 285 F.3d 971 (C.A.11-Fla. 2002).)
Pacificare Health Systems, Inc. v. Book
Certiorari has been denied in a case in which an Illinois appellate court held that a fugitive's unsworn, out-of-court statement that he had fired a handgun in the vicinity in which a murder victim was shot was not admissible, in a defendant's trial for the murder of that victim, as a statement against penal interest. According to the appellate court, the statement did not indicate that the fugitive committed the crime for which the defendant was charged. Furthermore, the fugitive's statement did not contain sufficient indicia of reliability, and there was no plausible basis to find that the interests of justice would be served by admitting the fugitive's statement. The defendant's petition for certiorari set forth the argument that his due process rights were violated by the exclusion of evidence that a third party was also shooting during a wild melee that occurred after the Chicago Bulls won the NBA championship in 1997, where the defendant's defense was that he did not believe he was the person responsible for shooting the victim. (Case below: People v. Arroyo, 328 Ill.App.3d 277, 764 N.E.2d 1214, 262 Ill.Dec. 97 (Ill.App. 1 Dist. 2002), app. den., 202 Ill.2d 616 (Ill. 2002) (TABLE).)
To read the Illinois appellate court's decision, use FIND with the citation 764 N.E.2d 1214.
To read the Supreme Court's order denying certiorari, use FIND with the citation 2003 WL 880953.
Arroyo v. Illinois
The United States Supreme Court has denied certiorari in a case in which the Seventh Circuit held that a party-appointed arbitrator's alleged failure to fully disclose his prior representation of the party did not render arbitrator "evidently partial," and thus, did not require vacatur of arbitration award made by a three-arbitrator panel under a provision of the Federal Arbitration Act (FAA), 9 U.S.C.A. § 10(a)(2), allowing vacatur of arbitration award due to arbitrator's partiality.
The Seventh Circuit held that a party-appointed arbitrator in a tripartite arbitration owes a lesser disclosure obligation than the neutral arbitrator. Thus, disqualification was not required under the facts, even assuming that the reinsurer's appointed arbitrator spent two months of full-time service as the legal counsel for the reinsurer in a prior unrelated international insurance arbitration, four-years earlier.
The. petitioner argued that the Seventh Circuit's decision squarely conflicted with the United States Supreme Court's decision in Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 89 S.Ct. 337, 21 L.Ed.2d 301 (1968), which petitioner characterized as requiring "all" arbitrators to disclose any prior relationship with the parties that is more than a trivial business relationship. Petitioner acknowledged case law in accord with the court of appeals' observation that parties may agree in their arbitration clause to allow party-appointed arbitrators to be partial, and by doing so waive their right to invoke the evident partiality provision of the FAA, but stated that those cases could not apply where the parties specifically agreed, in the Seventh Circuit's words, to appoint "impartial adjudicators." In the absence of a waiver of the disclosure requirement, the rule of Commonwealth Coatings should have applied, petitioner said. (Case below: Sphere Drake Ins. Ltd. v. All American Life Ins. Co., 307 F.3d 617 (C.A.7- Ill. 2002).)
To view the order denying certiorari, use FIND with the citation 2003 WL 359387.
To view the decision below use FIND with the citation 307 F.3d 617.
American General Life Ins. Co. v. Sphere Drake Ins. Ltd.
The United States Supreme Court has denied certiorari from a decision of the Court of Appeals for the Seventh Circuit regarding the protection of trademark rights in cyberspace. The Seventh Circuit held that the use of bargainbeanies.com, by a person who sold second-hand beanbag stuffed animals over the Internet, was not a violation of the federal antidilution statute, 15 U.S.C.A. § 1125(c) or the Anticybersquatting Consumer Protection Act (ACPA), for the purpose of a lawsuit brought by the holder of the "Beanie Babies" trademark. The Seventh Circuit reasoned that the reseller, who was not an authorized dealer of the trademark holder, was not a competing producer of beanbag stuffed animals, her Web site clearly disclaimed any affiliation with the trademark holder, and the status of the reseller in the aftermarket was created as a result of the trademark holder's marketing strategy.
In its petition for a writ of certiorari, the petitioner questioned the right of third-party resellers to incorporate famous marks into their business names and Internet domain names. It claimed that the Seventh Circuit's holding that the such conduct could not constitute dilution as a matter of law under the federal antidilution statute conflicted with the ruling of every other federal court to have considered the same or related issues. (Case below: Ty Inc. v. Perryman, 306 F.3d 509 (C.A.7-Ill. 2002).)
To view the order denying certiorari, use FIND with the citation 2003 WL 327447.
To view the decision below, use FIND with the citation 306 F.3d 509.
Ty Inc. v. Perryman
A bank's requirement of a thumbprint placed upon a check presented over the counter by a non-customer was reasonable. As a result, the bank's refusal to accept a check as presented by a non-customer, who would not provide reasonable identification in the form of a thumbprint signature, was not a "dishonor" under the Maryland Uniform Commercial Code. The thumbprint program was part of an industry wide response to the growing threat of check fraud. Prohibiting banks from taking reasonable steps to protect themselves from losses would run counter to the UCC, given the possibility that banks might refuse to cash checks of non-customers presented over the counter at all.
This decision may not yet be released for publication.
Messing v. Bank of America, N.A.
A purchaser had a viable cause of action under the Florida Deceptive and Unfair Trade Practices Act against a vendor who was a developer. The vendor allegedly signed a reservation form purporting to give the purchaser the right to subsequently enter into a contract to purchase a home on a specified lot and at a firm price. However, five months later the vendor allegedly offered the purchaser a home on an inferior lot for a higher price. Even though the reservation form was not a purchase agreement, the form could have deceived the purchaser into thinking that he was reserving the right to enter into a contract for a home on a specified lot. The issue was one of first impression.
This decision may not yet be released for publication.
Fendrich v. RBF, L.L.C.
The general margin of error of a breath test instrument, 0.01, did not need to be applied to certified test results showing a driver's blood-alcohol concentration of 0.10. Maryland's statute requiring suspension of a driver's license for a test result indicating an alcohol concentration of 0.10 or more at the time of testing is a test result statute, rather than an alcohol content statute. Moreover, suspending the license without consideration of the margin of error did not deprive driver of due process property interest in license.
This decision may not yet be released for publication.
Motor Vehicle Admin. v. Lytle
A state department of corrections's funding of a halfway house with a program of rehabilitation having a significant Christian element for the treatment of parole violators did not violate the establishment clause. The offenders were free to choose between the halfway house and secular programs, there was no evidence that parole officers were influenced by their own religious beliefs in recommending the halfway house or other programs to offenders, and all of the other programs with which the state contracted were secular.
Freedom from Religion Foundation, Inc. v. McCallum
In a case of first impression, the Supreme Court held that when imputing a child or spousal support obligor's income after determining that the obligor was voluntarily unemployed, the court must consider legitimate nonfinancial factors when basing imputed income on distant employment opportunities. In this case, the court imputed a former husband's earnings based on employment opportunities in distant states and Mexico. The court erred in failing to consider the disruption to the husband's relationship with his children and to his social and community ties that out-of-state employment would cause.
Wrenn v. Lewis
The venue requirements must be satisfied for each defendant joined in the suit, where the common occurrence joining the acts was not the defendants' actions together, such as acting in concert or engaging in the same tortious act, but was instead merely a result of separate incidents. Thus, a motorist's negligence claims against two defendants, relating to two separate accidents, could not be joined in a trial court in a county other than the county in which the accidents occurred and other than the county in which one of the defendants resided. Defendants' acts were connected only by plaintiff motorist's common injury, allegedly caused by the separate accidents.
This decision may not yet be released for publication.
Spencer v. Sytsma
As a matter of first impression, if a party is required by contract to submit a dispute to binding arbitration, but does not request that the arbitrator decide his entitlement to attorney fees even though that issue was part of the submission, the superior court cannot determine that issue and make an award of attorney fees and costs incurred in the arbitration. Allowing a party to request that the superior court make an award that was within the scope of the arbitration but not pursued in that forum would be inconsistent with the policies underlying the statutory private arbitration scheme.
Corona v. Amherst Partners
A consumer plaintiff who prevailed during compulsory arbitration of claims brought under the Magnuson-Moss Warranty Act and the Unfair Trade Practices and Consumer Protection Law was required to present his claim for attorney fees to the arbitration board. Addressing an issue of first impression, the Superior Court held that the question of attorney fees was properly for the arbitration board, and that the plaintiff could not simply request attorney fees from the Common Pleas Court after failing to address the issue during arbitration. The Superior Court observed that the plaintiff "finally prevailed" when the arbitration board issued its decision, given that such decisions were "final" unless and until they were appealed.
Conner v. DaimlerChrysler Corp.
A patent for a computer system for conducting electronic commerce, whose downloading component had to be an executable file or program, was not literally infringed by an accused product whose allegedly corresponding component consisted of only text-based files.
Network Commerce, Inc. v. Microsoft Corp.
The holder of a copyright on a song would be awarded statutory damages of $33,474, under the Copyright Act, representing twice the amount paid as royalties to the infringing musician by a record company. There was basis for the belief that income was received in excess of the royalties, and the infringer's lack of cooperation in discovery precluded a more precise determination of actual damages.
Jackson v. Sturkie
A computer manufacturer was entitled to the statutory marking defense to a claim of infringement on a patent that described and claimed a personal computer that had a novel motherboard form factor, where the infringing computers resold by the licensee were considered "Licensed Products" under the licensing agreement, the licensee did not mark those computers with a patent number, the license agreement did not include a requirement that the licensee mark any licensed products it sold with the relevant patent numbers, and the patent holder did not take any steps to ensure that its licensee complied with marking requirements.
Tulip Computers Intern. B.V. v. Dell Computer Corp.
Despite its titling as a performance bond, an instrument's wording was akin to that of an independent letter of credit, rather than a guaranty, surety, or performance bond dependent upon the original agreement, given the instrument's use of the words "irrevocable and unconditional" in describing the obligation being undertaken by a surety in guaranteeing a contractor's completion of its obligations to a joint venturer under a highway reconstruction contract. Therefore, under Puerto Rico law, the agreement was an unconditional letter of credit, payable to the joint venturer without regard to the contractor's performance under the highway contract.
Gutierrez v. American Intern. Ins. Co. of P.R.
Under Texas law, affiliates and employee of a bank, who were not signatories of a deposit agreement between the bank and depositors, could compel arbitration pursuant to the arbitration provision of the agreement. Claims that the affiliates, the employee and the bank conspired to make unauthorized investments of funds deposited in the account were all dependent upon the interpretation of the deposit agreement, which was to be accomplished through arbitration.
Jureczki v. Banc One Texas, N.A.
News
-
A federal Jury
convicted three nuns for breaking into missile silo site in
Colorado
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In one of the significant happenings
actor Robert Blake has pleaded not
guilty to murdering his wife in LA superior Court
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The US Supreme court has recently in its judgment upheld the
Virginia Law Legislation banning cross burnings.
-
The US Supreme Court has recently in its judgment dismissed a $145
million punitive damage award for a car accident
-
The Alameda County, Calif., court in Schwartz v. Visa International ruled
that both Visa and MasterCard made hundreds of millions of dollars by
misleading consumers and charging them a hidden currency conversion fee
every time they used their cards overseas and required the companies to
disclose the fee and to provide full restitution to consumers.
-
The California Supreme Court in one of its judgements allowed investors
who hold stock that declines in value to sue for fraud.
-
New York Supreme Court in Appalachian Insurance Company v. General
Electric Company has rejected a bid by General Electric Co. to lump together
thousands of asbestos claims and attach numerous insurers to GE's future
liability.
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SEBI
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Secondary Market Division
Notification No. SO314(E) Dated 25.03.2003 : Governing Board of Ahmedabad Stock Exchange has been superseded with effect from March 25, 2003 for a period of one year and Shri P. K. Ghosh has been appointed as an administrator to exercise and perform all the powers and duties of the Governing Board. Mutual Fund Division
Circular No. MFD/CIR No. / / 2003 Dated 04.04.2003 : It has been decided to permit each mutual fund to invest up to 10% of their net assets as on January 31, 2003 for investment in foreign securities. However, the limit of a minimum of US$ 5 million and a maximum of US$ 50 million for each mutual fund irrespective of the size of the assets as specified in SEBI circular
MFD/CIR/18/21826/2002 dated November 7, 2002 remains unchanged.
Circular No. MFD/CIR No.01/6693/03 Dated 03.04.2003 : According to SEBI Circular nos.
MFD/CIR No.10/310/01 dated September 25, 2001 and MFD/CIR/20/23230/2002 dated November 28, 2002, the intermediaries engaged in distribution of mutual funds units are required to pass the certification examination and be registered with AMFI by March 31, 2003. In view of the representations received from mutual funds and distributors on the difficulties faced by them, it has been decided to extend the time limit by six months, i.e. till September 30, 2003 . Press Release
Press Release No. PR 85/2003 Dated 07.04.2003 : SEBI has by Order issued under section 11 of the Securities Contracts (Regulation) Act, 1956, superseded the Board of Directors of the Pune Stock Exchange Ltd, with effect from April 04, 2003 and have appointed Shri
B.D. Banerjee as the Administrator of the Exchange to exercise and perform all the powers and duties of the Board.
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Department of Company Affiars
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Notification No. GSR300(E) Dated 03.04.2003 : In rule 2, in sub-rule (b), after clause
(xi), the following clause
has been inserted, namely, "(xii) any amount received as loan from the National Dairy Development Board by the companies owned by it directly or through its subsidiary companies."
Notification No. GSR275(E) Dated 01.04.2003 : 1. In rule 2, Clause (c) explaining the meaning of 'Scheduled Bank', has been inserted.
2. In rule 3 'or a Scheduled Bank' has been inserted after the words "a public financial institution" in sub-rule (b) and after the words "financial institutions" in sub-rule (c).
3. In Rule 3, Proviso regarding conversion of debentures and loans, has been added at the end.
Notification No. SO344(E) Dated 31.03.2003 : The Central Government has appointed the 1st day of April, 2003 as the date on which the provisions of Section 2 and 6 of the said Act shall come into force.
Notification No. SO340(E) Dated 31.03.2003 : The Central Government has appointed the 31st March, 2003, as the date on which the Section 1, Clauses (d), (g), (j), (k), (l) and (n) of Section 2, Section 8, 9, 10, 14, 16, 17, Sub-section (1) of Section 63 and Clauses (a), (b), (d), (e), (f) and (g) of Sub-section (2) of Section 63 of the said Act, shall come into force.
Circular No. 13/2003 Dated 25.03.2003 : The matter regarding striking off of the names of the defunct companies has been engaging the attention of the Department for quite sometime. In the past also, the Department had considered and announced simplification in the operation of the provisions of Section 560 in such a way that the Registrar of Companies
(ROCs) can weed out the defunct and dormant companies. This enabled the ROCs to strike off the names of defunct companies exercising, suo
moto, the powers vested in them and on application made by directors confirming that the company has no assets and liabilities and they have no intention to carry on the business and undertaking that they would be personally liable for claims arising in future.
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CBDT
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Notification No. 75/2003 Dated 01.04.2003 : In the Table to Appendix-I of the Income-tax Rules, 1962, in Part 'A' relating to TANGIBLE ASSETS, under the heading "III. MACHINERY AND PLANT', in sub-item (3), against entry (viii), entry (ix) and entry (x) in column 2, for the figures "80", the figures "100" have been substituted.
Notification No. 61/2003 to No. 72/2003 Dated 31.03.2003 : Construction of Saraswati Vidya
Mandir, Guhila, Bihar, Swami Vevekananda Youth Movement, Mysore, Murleidhar Jalan Foundation, Calcutta, Swasthaya Sewa Trust,
Ahmedabad, Anjali (Society for Rural Health and Development), Gujarat, Sahyog, Kushthayagna Trust, Gujarat, Bhaorao Deoras Seva
Nyas, Medical Research Foundation, ChennaiLucknow, Prashanti Medical Services and Research Foundation,
Rajkot, Bhil Seva Mandal, Gujarat, Lupin Human Welfare and Research Foundation and Jankidevi Bajaj Gram Vikash Sanstha have been specified under section 35AC(1)(b).
Notification No. 55/2003 to No. 57/2003 Dated 27.03.2003
: M/S Gujarat State Energy Generation Ltd., Gurdeep Siddha
Peeth, Maharashtra and Sant Nirankari Mandal, Delhi have been approved under section 10(23C)(iv).
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CBEC Excise Tariff
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Circular No. 22/706/2003 Dated 08.04.2003 : Board has decided that Commissioners having jurisdiction over Maritime Commissioner may also designate the Maritime Commissioner as Deputy/Assistant Commissioner of Central Excise (Export). This shall place the Maritime Commissioner at par with the Deputy/Assistant Commissioner of Central Excise (Export) designated in other Commissionerates in so far as the acceptance of bond is concerned.
Circular No. 21/705/2003 Dated 08.04.2003 : Board has decided to extend the Simplified Export Procedure to readymade garments sector (not to other sectors) by making the procedure applicable to such units which are primarily exporting and the clearances of waste and rejects for home consumption on payment of duty does not exceed 5% of their export turnover during the year.
Notification No. 27/2003 Dated 31.03.2003 : Central Government has exempted castor oil cake falling under heading No. 23.01 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), when manufactured from indigenous castor oil seeds on indigenous plant and machinery by a unit in special economic zone, which was in existence and functioning in a free trade zone before conversion of the said free trade zone into special economic zone with effect from the 1st day of November, 2000 and brought to any other place in India in accordance with the provisions of Export and Import Policy from whole of duty of excise leviable thereon under section 3 of the said Central Excise Act.
Notification No. 22/2003 to No. 24/2003 Dated 31.03.2003, No. 26/2003 Dated 31.03.2003 and No. 33/2003 Dated 04.04.2003 : Exemption has been granted to Goods specified, subject to Certain Conditions
Circular No. 20/704/2003 Dated 31.03.2003 : It is clarified that the existing stock of
LDO, as on 28.2.2003, would not be eligible for the purpose of availing Cenvat credit. However, if any, Cenvat credit had been availed, in terms of rule 3 of the aforesaid Rules, on
LDO, lying in stock as on 28.2.2003, the same is required to be reversed by the
assessee.
Circular No. 19/703/2003 Dated 25.03.2003 : Keeping in view the ground realities, the trade practices and the suggestions received, new excise procedures (by way of amendment to rules, notifications and issuance of executive instructions) have been framed.
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CBEC Excise Non Tariff
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Notification No. 30/2003 NT Dated 04.04.2003 : In the said notification, in the opening paragraph, (a) for the word and figures "Rules, 2001", the words, figures and brackets "Rules, 2001 (hereinafter referred to as the said rules)" has been substituted; (b) for the words and figures "rule 19 of the said Rules", the words and figures "rule 18 of the said rules to Nepal and rule 19 of the said rules to all countries" has been substituted.
Notification No. 29/2003 NT Dated 01.04.2003 : In the said notification, in clause (2), the following proviso has been added, “Provided that if such person manufactures or carries on trade in goods falling under Chapter 50, 51,52,53, 54, 55, 56, 57, 58, 59 60, 61, 62 or 63 of the of First Schedule to the Central Excise Tariff Act, 1985 (1 of 1986), and has more than one premises requiring registration, he may obtain a single registration for all such premises, which fall within the jurisdiction of one Commissioner of Central Excise subject to condition that the such person, while making application in terms of clause (1) of this notification, declares the details of all such premises in the form specified in Annexure 1.”
Notification No. 28/2003 NT Dated 01.04.2003 :
(i) the words and figures “the yarns or fabrics falling under Chapter 50, 51, 52, 53, 54, 55, 58 or 60 or readymade garments falling under Chapter 61 or 62, of First Schedule to the Tariff Act”, wherever they occur, the words and figures “yarns or fabrics falling under Chapter 50, 51, 52, 53, 54, 55, 58 or 60, readymade garments falling under Chapter 61 or 62 or made up textile articles falling under Chapter 63 of First Schedule to the Tariff Act”
have been substituted. (ii) in rule 7, in sub-rule (1), clause (e) has been substituted specifying
that any documents issued in the name of a person involved in purchase and sale of yarns or fabrics or undertaking activities pertaining to manufacture of yarns or fabrics or other
articles as specified, should be endorsed in full for the entire consignment covered under the said document by the said person to any other manufacturer, producer, first stage dealer or second stage dealer. (iii) Amendments have also been made in Rule 9A.
Notification No. 27/2003 NT Dated 01.04.2003 :
(i) in rule 8, in sub-rule (3), in the second Proviso, for the words beginning with “ without payment of duty” and ending with “ shall follow”, the following words have been substituted, “without payment of duty, and where such duty and interest are not paid within a period of one month from the due date, the consequences and the penalties as provided in these rules shall follow.” (ii) in rule 12B, for the words and figures “the yarns or fabrics falling under Chapter 50, 51, 52, 53, 54, 55, 58 or 60 or readymade garments falling under Chapter 61 or 62 of First Schedule to the Tariff Act”, wherever they occur, the words and figures “yarns or fabrics falling under Chapter 50, 51, 52, 53, 54, 55, 58 or 60, readymade garments falling under Chapter 61 or 62 or made up textile articles falling under Chapter 63 of First Schedule to the Tariff Act”
have been substituted
Notification No. 26/2003 NT Dated 26.03.2003 : In the said notification, in the opening paragraph , in clause (1), in sub-clause
(ii), (a) for the words “ every manufacturer”, the words “ every person, other than the said person referred to in sub-rule (1) of rule 12B of the Central Excise Rules, 2002,” have been substituted; (b) the proviso and the Explanation has been omitted
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CBEC Customs Tariff
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Notification No. 63/2003 Dated 02.04.2003
: Anti-Dumping Duty has been imposed on lead acid batteries imported from Taiwan, Singapore and Hong Kong.
Circular No. 31 /2003-Cus. Dated 07.04.2003 : It has been decided that in the port cities, the administrative control over all the EOUs including EHTP and STP units falling within the territorial jurisdiction of Commissioner of Customs shall be with the Commissioner of Customs. At other places, the administrative control over
EOU/EHTP/STP units shall be with jurisdictional Commissioner of Central Excise. The only exception will be in respect of Bangalore Customs. The Commissioner of Customs, Bangalore will continue to have administrative control over all such units within his territorial jurisdiction. As regards Special Economic Zones, the administrative control would continue to be with the jurisdictional Commissioner of Customs. Further, in case of new Special Economic zone that are likely to come up in future, the administrative control shall be exercised by the jurisdictional Commissioner of Customs.
Circular No. 30 /2003-Cus. Dated 04.04.2003 : It has been decided by the Board to introduce a self-assessment scheme called the Accelerated Clearance of Import and Export Scheme
(ACS). Under the self-assessment scheme, the importer himself/herself will determine the classification of goods, including claim for any exemption benefit, and the system will calculate the duty based on his/her declaration. Physical inspection of imported goods will be done by using risk-assessment and management techniques on a computer-based system and not on the orders of customs examining staff. Further, the existing system of concurrent audit of import documents will be replaced by post-clearance audit, as prevalent in developed
countries.
Circular No. 29 /2003-Cus. Dated 03.04.2003 :
The changes made in Chapter 6 of the revised Exim Policy 2002-2007 and Handbook of Procedures,
Vol-1 have necessitated amendments in the notifications governing duty free import/procurements of goods by EOU/EHTP/STP/SEZ units. It
has been, therefore, decided to consolidate all the notifications governing EOU/STP/EHTP schemes.
Circular No. 28 /2003-Cus. Dated 03.04.2003 : The Director General, DGCI&S, Kolkata has brought to the notice of the Board that the Customs field formations (sea, air and land) are not sending the DTRs as per the revised Customs Classification Codes for all categories of data,
i.e, EDI, Non-EDI and Manual . He has also stated that if the data are not received with the revised codes right from April, 03 onwards it may not be possible for them to adopt the new classification for the year 2003-04 .The data processing system of DGCI&S will suffer a serious setback if the data are reported both with the old and new codes.
In view of the importance attached to the DTRs sent by the field formations of the Customs, Customs field formations have been requested to ensure that the DTRs are sent to DGCI&S as per the revised 8 digit codes
Circular No. 27 /2003-Cus. Dated 02.04.2003 : A doubt has been raised whether goods imported by an importer not mentioned in column (2) against Sr. No. 1 of the
table of notification No. 51/96-Cus., dated 23.7.96, but meant for delivery to an institution specified in the notification, can be extended benefit of concessional rate of duty under the said notification, or not.
The Board has decided that Harmonious construction of provisions of the notification leads to the clear interpretation that benefit of concessional rate of duty under the said notification has to be allowed even in those cases where imports are made by importers other than the institutions specified in column (2) against Sr. No. 1 of the table, provided such imports are made for delivery to an institution specified in the notification.
Circular No. 26 /2003-Cus. Dated 01.04.2003 : It has been decided that the goods sent out for job-work shall be allowed to be returned to the units within a period of 90 days, instead of 30 days, from of date of removal as stipulated in the said Circular. Further, information regarding value addition to be achieved by the job workers at the time of making application for permission of job-working should not be insisted upon, since the same is difficult to workout and furnish. As regards subcontracting of production in
DTA, EOUs and EHTP/STP/SEZ units may be allowed to subcontract part of production in DTA as per the provisions of Exim Policy.
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EXIM Policy – Changes made in Advance License,
DFRC, EPCG, DEPB and DEEC Schemes, etc.
Circular No. 25 /2003-Cus. Dated 01.04.2003 2003-04 : EXIM Policy for the year 2003-04 has been announced on 31.3.2003 by Hon’ble Commerce & Industry Minister and it comes into force on 1.4.2003. On the demand of trade and industry changes have been carried out in the subject schemes to remove procedural bottlenecks and to boost export trade. Certain duty free concessions have also been extended to status holders and service providers with a view to augment foreign exchange earnings.
Circular No. 24 /2003-Cus. Dated 01.04.2003 : It has been decided that the area of the Special Economic Zones shall be a Customs station and all the functions
relating to the enforcement of the Customs Act shall be controlled by the Commissioner of Customs with the assistance of proper officers of Customs. The goods entered into the SEZ from the DTA shall be under the cover of a Bill of Export. This Bill shall be registered in the SEZ Customs formation and assigned a running serial number.
Circular No. 23 /2003-Cus. Dated 01.04.2003 : The Ministry has announced the revised All Industry Rates of Duty Drawback for the year 2003-2004 vide notification no.26/2003-Cus
(N.T.) dated 1.4.2003. These rates shall come into effect from 7.4.2003. Thus the existing rates shall remain in force till 6.4.2003.
Notification No. 48/2003, No. 49/2003 Dated 27.03.2003 and No. 61/2003 Dated 01.04.2003 : Anti-Dumping Duty has been imposed on Sodium
hydrosulphite, Sodium tripolyphosphate, Methylene Chloride and Sodium Hydroxide
Circular No. 22 /2003-Cus. Dated 31.03.2003 : Having regard to the fact that the surplus power is not a finished product of the unit, as also the fact that the sale of such power in DTA is allowed only on payment of duty foregone on consumables and raw materials used for generation of the power so sold, it has been decided that sale of power in DTA by EOUs and units in
EPZ/STP/EHTP/SEZ shall not be counted against the domestic sale entitlement of the units under the Exim Policy.
Circular No. 21 /2003-Cus. Dated 28.03.2003 : With reference to the Notification GSR No. 604(E) , dated 24.8.2001 issued by the Ministry of Health and Family Welfare, amending various provisions of the Drugs and Cosmetics Rules, whereby a new provision for the registration, in India, of foreign manufacturers of bulk drugs and formulations, has been introduced, it is clarified that this condition has to be satisfied before imports are effected from any foreign manufacturer of bulk drugs or formulations. A provision has also been introduced for obtaining import permission from the Drug Controller of India, prior to import.
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CBEC Customs Non
Tariff
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Notification No. 26/2003 NT Dated 01.04.2003 : The Central Government has determined the rates of drawback as specified in the Table, subject to the conditions specified in the General Notes.
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Department of Economic
Affairs
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Government of India has notified sale (reissue) of ‘7.37 per cent Government Stock, 2014’ for an aggregate amount of Rs. 5,000 crore (nominal). The sale will be subject to the terms and conditions spelt out in this notification as also the terms and conditions specified in the General Notification F No.4 (9)–W&M/2000,dated 6th May 2002 issued by Government of India as amended by Notification No.4 (9)–W&M/2000 dated 20th September 2002.
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RBI
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Circular No. A.P.(DIR Series) Circular No.93 Dated 05.04.2003 : In order to facilitate large corporates with proven track record and large import/export turnover to effectively and actively manage currency risks arising out of genuine exposures, Reserve Bank on application would consider permitting higher limits for booking forward contracts on the basis of past performance without submission of documentary evidence. Such forward contracts, booked under the enhanced limit, will be on a deliverable basis. Corporates desirous of availing of higher limits may forward their applications, through an authorised dealer, to the Chief General Manager, Reserve Bank of India, Exchange Control Department, Forex Markets Division, Central Office, Mumbai-400 001 (Fax No. 22611427, e-mail
ecdcofmd@rbi.org.in) justifying the need for the higher limits.
Circular No. A.P.(DIR Series) Circular No.92 Dated 04.04.2003 : Instructions pertaining to forward exchange cover, other derivative products, Rupee accounts of Non-resident banks and inter-bank dealings etc., have been consolidated as specified. These instructions supersede the instructions contained in
A.P. (DIR Series) Circular No.19 dated January 24, 2002.
Circular No. A.P.(DIR Series) Circular No.91 Dated 01.04.2003 : The facilities concerning the following have been extended to the units located in the Special Economic Zones
(SEZs). A. Realisation of export proceeds - there shall be no prescription of any time limit for realisation of exports made by units in
SEZs. B. Job work abroad - SEZs are permitted to undertake jobwork abroad and export goods from that country itself subject to fulfillment of the certain conditions C. Receipts of payment in precious metals for EOUs and units in SEZs - payment of export may also be received by the Gem & Jewellery units in SEZs and EOUs in form of precious metals i.e. Gold / Silver / Platinum equivalent to value of jewellery subject to conditions. D. ‘Netting off' of export receivables against import payments - authorised dealers may allow requests received from exporters for ' netting off ' of export receivables against import payments for units located in Special Economic Zones subject to conditions. E. Capitalisation of import payables - Units in SEZs are permitted to issue equity shares to non residents against import of capital goods subject to conditions.
Circular No. A.P.(DIR Series) Circular No.89 Dated 28.03.2003 : Authorised Dealers have been informed that a further change has taken place on March 7, 2003 and accordingly the rupee value of the special currency basket effective from March 11, 2003 has been fixed at Rs.57.5227.
Circular No. A.P.(DIR Series) Circular No.88 Dated 27.03.2003 : Government of India has decided to allow Indian companies to prepay the existing FCCBs and accordingly has issued Press Note dated February 5, 2003 notifying the Guidelines for prepayment of FCCB issues by an Indian company. It will, therefore, be in order for authorised dealers to allow Indian companies to prepay the existing FCCBs subject to the conditions stipulated in the Press Note referred to above.
Notification No.
DBOD.IBS.BC. 94/23.37.001/2002-03 Dated 08.04.2003 : It has now been decided to revise the ceiling from 5% of the unimpaired Tier - I capital to 10% of banks' unimpaired capital funds (Tier I and Tier II capital) for banks to offer credit/non-credit facilities to Indian Joint Ventures / Wholly Owned Subsidiaries abroad.
Notification No.
DBOD. No. BP. BC. 93/ 21.04.018/ 2002-2003 Dated 08.04.2003 : As the revised AS - 11 (2003) issued by the Institute of Chartered Accountants of India shall come into effect in respect of accounting periods commencing on or after 1 April 2004 and its applicability to banks is under examination, banks have been advised to follow the guidelines contained in Circular
DBOD. No. BP.BC. 68/ 21.04.018/ 96 dated 5 June 1996 for finalising the accounts for the year ended 31 March 2003 also.
Notification No. DBOD IBS BC 92 /23.13.004/2002-03 Dated 05.04.2003 : With reference to circular DBOD IBS BC 42/23.13.004/2002-03 dated November 11, 2002 alongwith the scheme for setting up of OBUs in SEZs and circular DBOD IBS BC 80 /23.13.004/2002-03 dated March 19, 2003 clarifying various issues raised by banks, it is clarified that an OBU may lend to units and SEZ developers in other
SEZs.
Notification No.
DBOD.No.FSC.BC. 90 / 24.76.002/2002-03 Dated 31.03.2003 : With reference to circular
IDMC/PDRS/3432/10.02.01/2002-03 dated February 21, 2003 advising revised terms and conditions for entering into ready forward contracts (including reverse ready forward contracts), the relevant instructions contained in undernoted circulars stand superseded: - (i) DBOD.No.Dir.BC.127/C.347(PSB)-88 dated April 11, 1988 read with subsequent clarifications issued vide DBOB.No.Dir.BC.72/C.347
(PM/BBA)-91 dated January 23, 1991 (ii) DBOD.No.BC.67/13.05.001/92 dated January 6, 1992 (iii) DBOD.No.FSC.BC.91/24.76.002/2001-02 dated April 19, 2002
Notification No.
DBOD.No.BP. BC. 89 /21.04.018/2002-03 Dated 29.03.2003 : With a view to eliminating gaps in compliance with the Accounting Standards, the Working Group has made recommendations on the Accounting Standard 5, 9, 11, 15, 17, 18, 21 and 22 and detailed guidelines based thereon have been furnished for the guidance of banks. The Working Group has not made recommendation on Accounting Standard 11 since ICAI is in the process of revising Accounting Standard 11. Guidelines on Accounting Standard 21 (Consolidated financial statements) have been issued separately vide circular DBOD.No.BP.BC.72/21.04.018/2002-03 dated February 25, 2003.
Notification No.
DNBS.(PD) C.C. No. 26 /02.02/2002-03 Dated 31.03.2003 : Taking into account the market conditions and changes in other interest rates in the entire financial system, it has been decided to revise the minimum rate of return, which the RNBCs are required to pay to their depositors in terms of paragraph 5 of the Residuary Non-Banking Companies (Reserve Bank) Directions, 1987 dated May 15, 1987
(RNBC Directions).
Notification No.
IECD.No. 17 /08.12.01/2002-03 Dated 05.04.2003 : With reference to circular IECD.No.37/08.12.01/94-95 dated February 23, 1995 whereby banks are precluded from issuing guarantees favouring financial institutions, other banks and other lending agencies, in tune with liberalisation and deregulation of the banking sector and in view of the adoption of risk management systems in banks, the above instructions were reviewed and it has been decided that banks may henceforth, be allowed to issue guarantees favouring other
banks/FIs/ other lending agencies for the loans extended by the latter.
Notification No.
IECD. No. 16 /04.02.02/2002-03 Dated 01.04.2003 : As per para 7.1 (b) of the EXIM Policy announced on March 31, 2003, goods and services going in to Special Economic Zone area
(SEZ) from Domestic Tariff Area (DTA) shall be treated as exports. It has, therefore, been decided that supply of goods and services from DTA to Special Economic Zone area would be eligible for export credit facilities.
Notification No. CO.DT.13.01.299/H-3836/2002-03 Dated 03.04.2003 : It has been decided by the Government of India to issue 8% Savings (Taxable) Bonds, 2003 with effect from 21st April 2003 in terms of their Notification No.F.4(10)-W&M/2003 dated 21st March 2003 read with Notification
F.No. 4(10)W&M/2003 dated 2nd April 2003.
Press Release No. 1019/2002-03 Dated 31.03.2003 : The Reserve Bank of India today announced a revision in the minimum rate of interest which the Residuary Non-Banking Companies
(RNBCs) are required to offer on their deposits. Taking into account the market conditions and changes in other interest rates in the entire financial system, the minimum rate of return that RNBCs are obliged to pay on their deposits effective from April 1, 2003 has been revised to 3.5 per cent from the current 4 per cent on daily deposits and to 5 per cent from the current 6 per cent on other deposits.
Press Release No. 1018/2002-03 Dated 31.03.2003 : The Reserve Bank of India, in conjunction with the banks, has embarked upon a Special Electronic Funds Transfer
(SEFT) Scheme. The Scheme would enable safe, secure and quick transfer of funds electronically across branches of banks at many centres of the country. The Scheme would be introduced from April 1, 2003, with the settlement taking place at Mumbai for inter-bank funds transfers.
Press Release No. 1013/2002-03 Dated 29.03.2003 : The Reserve Bank of India has asked all Non-Banking Financial Companies
(NBFCs) to attach, effective from the financial year ending March 31, 2003, a schedule to their balance sheet and give certain additional particulars. The Reserve Bank has prescribed a format prescribed for the schedule which includes information on borrowerwise and
investorwise exposure to related parties, position of non-performing assets and business levels in lease and hire purchase and other activities.
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DGFT
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Notification No. 04 (RE-2003)/ 2002-2007 Dated 02.04.2003 : In continuation of Notification No. 50 (RE-2001)/1997-2002 dated the 22nd March , 2002, and Notification No.7 dated 12th April, 2002 and Public Notice No.8 dated 19th April,2002 releasing thereby the quantity of 2 Lakh
MTs. , 1 Lakh MTs. and 6 Lakh MTs. of onion for export up to 31st March,2003 respectively the Director General of Foreign Trade has now decided that unutilised balance quantity of onions released under the above notifications shall be allowed for export upto 30th June, 2003.
Public Notice No. 01 (RE- 03)/ 2002-2007 Dated 31.03.2003 : The Director General of Foreign Trade hereby notifies the Handbook of Procedures (Vol. I) (Revised Edition – March, 2003)
Notification No. 03 (RE-2003)/2002-2007 Dated 31.03.2003 : The Central Government
has made amendments in the Schedule 2
ITC(HS) Classification of Export and Import items, 2002-2007
Notification No. 01/(RE 2003)/2002-2007 Dated 31.03.2003 : The Central Government has notified the Export and Import Policy, 2002-07, as amended from time to time.
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Department of Commerce
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Notification No. 14/6/2002-DGAD Dated 31.03.2003 Anti-Dumping Investigation Concerning Imports of D(-) Para Hydroxy Phenyl Glycine Base
(PHPG Base) Originating in or Exported from the European Union, has been initiated.
Notification No. 14/40/2002-DGAD Dated 26.03.2003 : Preliminary Findings regarding Anti-Dumping Investigation Concerning Imports of Borax Decahydrate Originating in or Exported from the Turkey and China PR, have been published.
Notification No. 7/1/97-ADP Dated 26.03.2003 and Notification No. 18/1/1997-DGAD Dated 24.03.2003 : Review of Anti-Dumping Duty on Import of Magnesium from China PR and Mid-Term Review Regarding Anti-Dumping Duty Imposed on Fused Magnesia from China PR, has been initiated.
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Department of Industrial Policy
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Press Note No. 1/2003 Dated 21.03.2003 : Following an exercise to simplify Form 'EE' and make it convenient for the entrepreneurs applying for grant of Carry-on-Business licence it has been decided that, henceforth, all applications for grant of COB licence will be accepted by the SIA in the revised format
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Department
of Consumer Affairs
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Notification No. SO371(E), No. SO370(E) and No. SO369(E) Dated 01.04.2003 : Notification No.
S.O. 24(E), Dated 06.01.1998 and Notification No S.O. 23(E), Dated 06.01.1998 have been rescinded and certain notifications as specified.
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Ministry of Petroleum
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Notification No. GSR295(E) Dated 01.04.2003 : Central Government has made the Petroleum and Natural Gas (Amendment) (Rules), 2003, to be effective from 01.04.2003.
Notification No. 9-20029/18/2001-pp Dated 31.03.2003 : The Government of India has made the ATF Sales Tax Compensation Scheme, 2002 for compensating the oil companies in lieu of the sales tax under recoveries on account of ATF sales to foreign airlines.
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Press Information Bureau
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Dated 03.04.2003 : The Union Minister of Finance and Company Affairs, Shri Jaswant Singh has approved 52 proposals recommended by the Foreign Investment Promotion Board
(FIPB) in its meetings held on March 13 and March 21, 2003. The approvals amount to around Rs.321
crore.
Dated 01.04.2003 : The Government has notified the new All Industry Rates of Duty Drawbacks for the year 2003-04. These will come into effect from April 7, 2003.
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Supreme Court
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The question for
consideration in this case was whether in a criminal trial, evidence can be
recorded by video conferencing. It was submitted on the behalf of respondents
that Section 273, Criminal Procedure Code does not provide for the taking of
evidence by video conferencing, the term "presence" in Section 273
must be interpreted to mean physical presence in flesh and blood in open Court.
The Hon'ble Court held Section 273 provides for dispensation from personal
attendance. In such cases evidence can be recorded in the presence of the
pleader. The presence of the pleader is thus deemed to be presence of the
Accused. Thus Section 273 contemplates constructive presence. This shows that
actual physical presence is not a must. This indicates that the terms
"presence", as used in this Section, is not used in the sense of
actual physical presence. A plain reading of Section 273 does not support the
restrictive meaning sought to be placed by the Respondent on the word
"presence". One must also take note of the definition of the term
'Evidence' as defined in the Indian Evidence Act. Evidence can be both oral and
documentary and electronic records can be produced as evidence. This means that
evidence, even in criminal matters, can also be by way of electronic records.
This would include video-conferencing.
The question involved in this appeal was
whether a party to a divorce proceeding can be compelled to a medical
examination is the core question involved in this appeal. The Hon'ble Supreme
court held that where divorce is sought, say on the ground of impotency,
schizophrenia...etc. normally without there being medical examination, it would
be difficult to arrive at a conclusion as to whether the allegation made by his
spouse against the other spouses seeking divorce on such a ground, is correct or
not.
If respondent avoids such medical
examination on the ground that it violates his/her right to privacy or for a
matter right to personal liberty as enshrined under Article 21 of the
Constitution of India then such action would not be violative of Article 21
of the Constitution of India. The Court having regard to Article
21 of the Constitution of India must also see to it that the right of a person
to defend himself must be adequately protected.
The Hon'ble judges came following conclusions:
1. A matrimonial court has the power to order a person to undergo medical test.
2. Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution.
3. However, the Court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the Court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against him.
On 13.3.2002 while hearing public interested litigation
the Hon'ble court
ordered, no religious activity of any kind by anyone either symbolic or actual
including bhumipuja or shila puja, shall be permitted or allowed to take place
in the land is vested in the Central Government, nor shall any part of this
land be permitted to be occupied or used for any religious purpose or in
connection till the disposal of this writ petition. The aforesaid order was
clarified by another order dated 14.3.2002. Subsequently after the pleading were
completed an application was filed seeking for vacating the interim order and
for final hearing of the petition. The Hon'ble court held that status
quo has been maintained from 1992 onwards and no activities as are set out in
the course of the application have been required to be done so far. When for a
long time, a particular state of affairs has prevailed - as in the present case
for over a decade - and when the adjudication of the disputes which are pending
before the High Court are reaching final stages, it will not be appropriate to
disturb that state of affairs. The order made by this Court on 13.3.2002, as
modified by the order made on 14.3.2002, should be operative until disposal of
the suits in the High Court of Allahabad not only to maintain communal harmony
but also to fulfil other objectives of the Act.
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