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[No.49]
May 10, 2003 |
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International Legal News |
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Cases
Source:Westlawinternational.com
Denying certiorari, the United States Supreme Court has let stand an unpublished Third Circuit decision upholding a district court's affirmance of a bankruptcy court's determination that Eleventh Amendment sovereign immunity protected a state agency, Pennsylvania's Department of Public Welfare
(DPW), in its capacity as an arm of the Commonwealth, from an adversary proceeding brought by Chapter 7 debtors. The lower courts recognized, and the Court of Appeals agreed, that the case was controlled by the Third Circuit's decision in In re Sacred Heart Hosp. of Norristown, 133 F.3d 237 (C.A.3-Pa. 1998), and so the Court of Appeals affirmed.
In their petition for a writ of certiorari, the debtors argued that their case was distinguishable from Sacred Heart, and that a lawsuit to determine the dischargeability of a debt is not a "proceeding" within the meaning of the Eleventh Amendment. They contended, too, that the analysis in Sacred Heart improperly relied on dicta taken from the Supreme Court's decision in Seminole Tribe of Florida v. Florida, 517 U.S. 44, 116
S.Ct. 1114, 134 L.Ed.2d 252 (1996). Finally, the debtors argued that the states ceded their sovereignty over matters related to bankruptcy as part of the plan of the Constitutional Convention, and so 11
U.S.C.A. § 106(a), the section of the Bankruptcy Code purporting to abrogate the states' sovereign immunity, is not unconstitutional.
Askey v. Pennsylvania Dept. of Public Welfare
Denying certiorari, the United States Supreme Court has let stand a Fifth Circuit decision that the prosecution's comments that it had considered prosecuting a defense expert for misprision of a felony and that it would consider prosecuting the defense expert for perjury if she were, in fact, to perjure herself did not rise to the level of substantial interference with the expert's choice to testify. Thus, the decision did not violate the defendant's due process rights or his Sixth Amendment right to present witnesses. This was so particularly since the expert, after receiving assurances from the district court and from the Assistant United States Attorney, did testify.
The Court of Appeals further decided that the district court did not err when it prohibited the defendant, who was being tried on various charges arising out of a scheme to defraud medical-insurance companies, from introducing evidence of those threats to the jury. The defendant relied on United States v. Lowery, 135 F.3d 957 (C.A.5-Miss. 1998), in which a defendant was charged with obstruction of justice by attempting to influence a witness to testify falsely in a then-pending criminal tax case. The Fifth Circuit stated that in Lowery, the government witness intimidation sought to be shown occurred before and was a cause of the defendant's charged conduct and was relevant to show his state of mind in engaging in that conduct. Here, by contrast, the alleged witness intimidation occurred more than a year after the conduct charged in the indictment and had no relevance to it or to the defendant's state of mind.
Bieganowski v. U.S.
The United States Supreme Court has granted certiorari in a case in which the Third Circuit held that the mandatory detention of an alien who had been found subject to removal but had not yet been ordered removed because he was pursuing his administrative remedies violated his due process rights, absent an opportunity for an individualized hearing at which he could show that he did not pose a flight risk or a danger to the community. The Supreme Court also vacated the decision and remanded for further consideration in light of Demore v. Kim, 2003 WL 1960607 (2003). In that decision, the Supreme Court held that Congress may require aliens who are removable due to having been convicted of one of a specified set of crimes, including aggravated felonies, to be detained for the brief period necessary for their removal proceedings.
Riley v. Radoncic
An agency's action in violation of its own rule or regulation, which caused prejudice to the party against whom the agency had acted, was subject to vacation. If the rule violated was one concerning internal administrative procedure and impacted a substantial right, the action was vacated pursuant to the Administrative Procedure Act. If the rule violated involved an individual right or an important procedural benefit, then the action was vacated pursuant to the Accardi doctrine, which required that agencies follow their own rules and regulations.
Pollock v. Patuxent Inst. Bd. of Review
A five-week-old fetus constitutes a part of the mother's body and, therefore, is a member of her body within the meaning of attempted aggravated sexual assault in the first degree and attempted assault in the first degree statutes, which require an intent to destroy or disable permanently a member or organ of victim's body. The Court reasoned that, as with any bodily part, the fetus constitutes physically identifiable tissue, the implantation of the fetus occurs within the mother's uterus, the fetus is attached to the mother via the umbilical cord and the placenta, the fetus is nourished and sustain by the mother, and, at such age, the fetus is incapable of survival outside the mother. The Court, in light of the State's compelling interest in safeguarding life and limb, was unwilling to presume that the legislature sought to protect a person's ear, tongue, and skin, but not a developing fetus living within, and physically attached to, the mother.
State v. Sandoval
Under Pennsylvania law, a defendant's action of signing the victim's name to credit card receipts was properly graded as a felony of the third degree because the credit card receipts constituted documents evidencing or otherwise affecting legal relations within the meaning of the Pennsylvania statute providing that forgery is a felony of the third degree if the writing is or purports to be a document evidencing or otherwise affecting legal relations. The defendant's signing of the credit card receipts set forth the contract to pay for the merchandise purchased. However, the defendant clearly had no such intent. Furthermore, regardless of the dollar amount enunciated in the statute governing access device fraud, relating to the unauthorized use of a credit card, the defendant could be convicted of forgery, graded as a third-degree felony, when he fraudulently signed the credit card sales receipt. These were issues of first impression.
Com. v. Sargent
No relationship existed between two physicians who recommended to the Iowa Department of Transportation that their visually impaired patient was competent to drive and a bicyclist who was struck by a car driven by that patient. Therefore, the physicians owed no duty to protect the bicyclist and the public at large from any danger posed by the patient's driving, precluding the bicyclist from recovering in negligence from the physicians. According to the Iowa Supreme Court, imposing a duty in this case "would impinge upon the physician's primary obligation, which is to treat his or her patient." The Court added: "Such unlimited exposure to liability could chill physicians' willingness to recommend driver's licensing for any patient who is even visually impaired. Imposition of liability would create physicians' divided loyalty between the welfare of patients, to whom they have a primary responsibility, and the welfare of the unknown public."
Kolbe v. State
Under New York law, two sureties waived all defenses to a bank's claim for payment under a premium finance bond, including the defense of fraud in the inducement, pursuant to a disclaimer clause in the bond which provided that the sureties' liability would not be released, discharged, or affected by circumstances constituting a legal or equitable discharge or defense, and indicated that the sureties' obligations under the bond "shall be absolute and unconditional under any and all circumstances." The bond was a product of negotiations among sophisticated businessmen, and its terms were drafted by the sureties. In addition, an exception provision within the disclaimer clause demonstrated that both parties had the opportunity to clarify further and to carve out any additional exceptions to liability, but instead settled for the disclaimer's inclusive waiver.
Valley Nat. Bank v. Greenwich Ins. Co.
The collection efforts by a debt collection agency and its assistant manager did not support liability under Kansas law for intentional infliction of emotional distress. Although the assistant manager allegedly called the purported debtor a "low life" and "thief" and threatened to take away her home, and other agency representatives allegedly threatened to take her home and pursue aggressive legal tactics if the purported debtor did not pay disputed credit card debts, these actions were not sufficiently extreme and outrageous, given the absence of evidence that the agency and assistant manager were aware or should have been aware that the purported debtor was particularly vulnerable to emotional distress by virtue of her advanced age or mental condition. Moreover, the emotional distress experienced by the purported debtor was not so severe and extreme that no reasonable person could be expected to endure it. While the purported debtor offered evidence that she suffered stress, loss of sleep, fright, and other distress that caused her to cry, shake, and lose sleep, she did not consult a doctor or mental health professional, mention the collection calls to her treating physician, or manifest physical symptoms.
Lowe v. Surpas Resource Corp.
The Court of Appeals lacked appellate jurisdiction under the Federal Arbitration Act (FAA) to hear an interlocutory appeal from the denial of motion to compel arbitration where the denial was based on the lack of a clear agreement to arbitrate. The Court of Appeals had jurisdiction to determine its own jurisdiction, and thus to examine the merits of the dispute to that extent. Here, the incorporation by reference into the parties' bear distributorship agreement of a broad Texas regulatory act concerned with the beer industry, which contained one statute providing for permissive arbitration under narrow circumstances, did not indicate a clear intent to agree to binding arbitration of any dispute.
Cerveceria Cuauhtemoc Moctezuma S.A. v. Montana Beverage Co.
The public participation requirements of the federal Clean Water Act were violated by the lack of a public hearing on each Storm Water Pollution Prevention Program
(SWPPP) submitted by a small municipality to a state pollution control agency in seeking coverage under a general permit governing discharge of storm water by small municipalities. Each SWPPP contained substantive details for storm water control, and a municipality obtained immediate coverage under the general permit as soon as it filed its application containing the
SWPPP.
Minnesota Center for Environmental Advocacy v. Minnesota Pollution Control Agency
Wildlife preservation groups failed to establish associational standing required to sue the Wildlife Services of the Animal and Plant Health Inspection Service (APHIS) and the Secretary of Agriculture for their alleged failure to follow regulations when implementing the livestock-protection program. There was no showing that the alleged failure to comply with the use restriction on cyanide-ejector devices would harm the members' concrete aesthetic, spiritual, professional, and recreational interest in viewing wolves, bears, and California condors in Yellowstone National Park and Colorado, Montana, Arizona, and Utah. Neither was there evidence that the devices were used in the geographic areas in which the groups had an interest, or that APHIS, rather than another agency, was responsible for placing the devices that allegedly harmed the animals and birds.
San Juan Audubon Society v. Wildlife Services, Animal and Plant Inspection Service
Denying certiorari, the United States Supreme Court has let stand a decision of the Tenth Circuit allowing an Environmental Protection Agency (EPA) suit to proceed against an industrial polluter, notwithstanding the existence of independent state enforcement action. Petitioner sought to challenge the EPA's "expanding practice of undermining state enforcement decisions by
'overfiling' " under the Resource Conservation and Recovery Act (RCRA), 1002 et seq., as amended, 42
U.S.C.A. § 6901 et seq. The Tenth Circuit found that the EPA's construction of the
RCRA, as permitting federal actions to secure financial assurances from alleged polluters despite state enforcement actions, was reasonable and therefore entitled to deference. The petition for certiorari asked if the EPA may undertake its own enforcement action against a polluter when a state that is authorized under the RCRA to "administer and enforce" a state hazardous waste program "in lieu" of a federal program is prosecuting an enforcement action against the same polluter for the same violation. (Case below: U.S. v. Power Engineering Co., 303 F.3d 1232 (C.A.10-Colo. 2002).)
Power Engineering Co. v. U.S.
The Inter-American Convention on International Commercial Arbitration did not permit the vacatur of an award for breach of reinsurance agreement, requiring foreign reinsurer to post prejudgment security, in favor of a domestic insurer, based on a motion to vacate that was solely driven by a foreign reinsurer's legal strategy for an appeal and that lacked any merit whatsoever. The Convention also did not permit altering the award, such that its enforcement was prolonged pending reinsurer's appeal from denial of its motion to vacate arbitration orders. Instead, the Convention required confirmation of the award.
Banco de Seguros del Estado v. Mutual Marine Offices, Inc.
Incorrect information in payment coupon books printed by the insured was not "property damage" within the meaning of a printers errors and omissions (E&O) policy excluding liability coverage for the costs or damages incurred for the correction, repair, or replacement of property damage to the named insured's product. Thus, the exclusion did not apply to the insured's economic loss from the cost to reprint and re-mail the books, even though the economic damages were not sustained by third parties. The error in information related to intangible property, not tangible property.
Venture Encoding Service, Inc. v. Atlantic Mut. Ins. Co.
Under Arkansas law as predicted by the federal district court, an insurer which was defending a suit under a general reservation of rights was not entitled to reimbursement for a settlement it made on the insured's behalf, where it did not specifically reserve the right to reimbursement. Nor was the insurer entitled to reimbursement as a matter of equity. The insurer settled the claim before the issue of coverage was resolved and without the prior knowledge or consent of the insured.
Nobel Ins. Co. v. Austin Powder Co.
Phrase, "improved competence," did not require any particular specific numerical limitation, and it did not require that repeated freezing and thawing did not decrease competence, in patent claiming process for making E. coli cells with enhanced capacity to accept foreign DNA; even though phrase was not mere statement of intended advantage due to limitation on claim, claim language itself did not include any specific numerical limitation for "improved competence" and neither the specification nor prosecution history supplied any specific improvement measure.
Invitrogen Corp. v. Biocrest Mfg., L.P.
The owner of a patent for a mist on tanning system failed to establish the necessary causal link between a patent applicant's allegedly false advertising and possible harm to the owner. A letter from potential investors to the patent owner, written in response to advertising materials issued by the applicant that correctly claimed that its product had "patent pending," merely showed the investors learned of the applicant's product and were concerned that it was source of competition. Further, even assuming sales charts showed the patent owner suffered significant losses, the conclusory and speculative allegations of the owner's shareholder were insufficient to establish the required causal link.
Laughlin Products, Inc. v. ETS, Inc.
A music publisher, as the plaintiff in a copyright infringement lawsuit, established a prima facie purposeful availment finding under the stream of commerce "plus" approach against a sound recordings distributor on deposition testimony of the distributor's president, that his understanding was that the recordings would be distributed nationwide, "in all 50 states" pursuant to the parties' agreement. The publisher also established that the distributor purposely availed itself of the privilege of acting in the forum state as result of Internet activity, where the distributor sold at least 30 allegedly infringing albums in the forum state through Internet.
Bridgeport Music, Inc. v. Still N The Water Publishing
News
-
In S.S. White Burs Inc. v.
Neo-Flo Inc. it was held
that in patent infringement litigation, the holder of the patent cannot
resist discovery of issues relating to claim construction on attorney-client
privilege or work-product grounds, because claim interpretations must be
disclosed to prove the case in the first instance.
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New York's Fried, Frank, Harris, Shriver & Jacobson
and London's Ashurst Morris Crisp have broken off merger discussions, ending
a year of speculation on whether the two firms would undertake the first
trans-Atlantic merger of equals.
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Evidence of the alleged link between the Iraqi government
and al-Qaida may not have been conclusively accepted in the court of public
opinion, but it is enough to win a default judgment in the Southern District
of New York. Judge Harold Baer ruled Wednesday that the survivors of two
people who were killed in the World Trade Center terrorist attack had
presented enough evidence, "albeit barely," to be awarded $104
million in damages against the state of Iraq, Osama bin Laden, and his
terrorist network. Addressing what he described as several "novel"
issues concerning the Foreign Sovereign Immunities Act and civil recovery
under the Antiterrorism Act of 1991, Baer found a reasonable jury could
infer "that Iraq provided material support to Al Qaeda and that it did
so with knowledge and intent to further Al Qaeda's criminal acts." The
two cases joined under Smith v. The Islamic Emirate of Afghanistan, 01 Civ.
10132, sought to show through the opinions of experts, including former CIA
Director James Woolsey Jr., that Iraq helped train al-Qaida terrorists, and
provided them with safe houses and forged documents.
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Gary
Reback, the former Wilson Sonsini Goodrich &
Rosati partner who gained national prominence for his fight against
Microsoft Inc., is returning to the law to tackle a copyright question he
thought he'd put to rest years ago. Reback is representing Calabasas,
Calif.-based Bulletproof Technologies Inc. in a new battle over the
application of copyright law to computer software. Reback said the case
addresses the same question raised in Lotus Development Corp. v. Borland
International Inc., 513 U.S. 233, a seminal 1996 U.S. Supreme Court case
that denied copyright protection for a computer program's menu command
system. Lotus had sued Reback's client Borland for infringing its
spreadsheet program. The courts may use the new case to interpret how
copyright restrictions in foreign countries may or may not apply in the
United States.
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Visa and MasterCard urged a federal appeals court
Thursday to overturn a judge's ruling that was designed to allow American
Express and other companies more access to the U.S. market for credit cards. The
2001 ruling, by a federal judge in Manhattan, said Visa and MasterCard -
which control the vast majority of the American credit-card market - must
drop rules that prohibit their member banks from also issuing American
Express cards. But Visa and MasterCard lawyers told the 2nd U.S. Circuit
Court of Appeals that the judge had ruled with the interests of American
Express in mind - not the interest of all consumers, the people antitrust
law was written to protect.
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Adidas-Salomon <ADSG.DE> declined to comment on
Thursday about a lawsuit in California alleging the German sporting goods
firm was selling sports shoes made with banned kangaroo products.Adidas
shares were lower on news an animal rights group sued the firm in a San
Francisco Superior Court on Wednesday, saying the company was selling shoes
that include kangaroo products barred in California.
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A California court has dismissed a libel claim against
eBay Inc. by a shopper who was criticized by a merchant on the auction site
- a key ruling that further limits eBay's responsibility for the actions of
its users. Judge Thomas L. Willhite Jr. of the Superior Court of California
in Los Angeles last week granted the company's request to dismiss the libel
claim by Roger M. Grace, who bought merchandise via eBay's Web site.
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A Los Angeles man has filed a proposed class action
lawsuit against Best Buy Inc. and Microsoft Corp., accusing them of scamming
customers by charging them for online services without their knowledge.
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SEBI
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Circular No. RMB (Compendium) Series Circular No. 9 Dated 02.05.2003 :
1. In Chapter IV - Promoters Contribution and Lock-in Requirements, Clause 4.16.1 relating to Inter-se Transfer of Locked- in Securities has been substituted.
2. In Chapter VI - Contents of Offer Document, in Clause 6.1, a new sub-clause 6.1.2 has been inserted stipulating that the draft offer document and final offer document shall be approved by the Board of Directors of the issuer company and signed by all the Directors (including the Managing Director), Chief Executive Officer and Chief Financial Officer of the issuer company . The existing Clause 6.13.1 has been substituted specifying the information to be disclosed for all issues irrespective of the issue price.
3. In Chapter XIII – Guidelines for Preferential Issues, the existing clause 13.3.2 has been substituted by the following:
‘13.3.2 These locked in shares/instruments may be transferred to and amongst promoter/promoter group or to a new
promoter(s) or person(s) in control of the company, subject to continuation of lock-in in the hands of
transferee(s) for the remaining period and compliance of Securities and Exchange Board of India (Substantial Acquisition of shares and Takeovers) Regulations, 1997, as applicable.’
Venture Capital
Circular No. MFD/VCF/CIR no 2/7350 /2003 Dated 29.04.2003 : In accordance with Reg. 13 (1) of SEBI (Foreign Venture Capital Investors) Regulations, 2000, all the Foreign Venture Capital Investors have been directed to henceforth submit the report on venture capital activity to
SEBI, complete in all respects, strictly in the prescribed format.
Depositories and Custodian
Circular No. D&CC/FITTC/CIR – 21/2003 Dated 29.04.2003 : As per Circular No.D&CC/FITTC/CIR-05/2001 dated December 26, 2001 , it was decided that those companies which do not establish electronic connectivity would be put under “trade for trade” settlement mode and would be allowed to be shifted to regular rolling settlement mode only after establishing electronic connectivity with both the Depositories. In this regard, both the Depositories have informed that 81 more companies have established electronic connectivity with them and as such these companies were admitted into their depository systems out of which 56 companies have established connectivity before 31st December, 2002 and are therefore eligible to be traded in normal rolling settlement mode with immediate effect.
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Department of Company Affiars
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Circular No. 20/2003 Dated 25.04.2003 : Doubts have been raised about the applicability of Notification No.
G.S.R. 545(E) dated 1st August, 2002 to the profit and loss account also. As balance sheet and profit and loss accounts are forming part of annual accounts of a company prepared under Schedule VI, it is clarified that, by implication, the simplified procedure, as notified, may also apply to profit and loss accounts. Only then will it be of benefit to readers of these accounts, by being consistent across both the balance sheet and profit & loss account.
Circular No. 19/2003 Dated 25.04.2003 : In partial modification of General circular No. 5/2000 dated 30th June, 2000, it is hereby further clarified that since the Insurance Regulatory and Development Authority has notified the Insurance Regulatory and Development Authority (Insurance Brokers) Regulations, 2002 permitting private sector companies to carry on the insurance brokers’ business, the Registrar of Companies may permit change of name of existing companies on their changing the objects to undertake the business of insurance brokers also.
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CBDT
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Order Dated 28.04.2003 : The Central Board of Direct Taxes has extended the last date of filling of all TDS returns in respect of previous year 2002-2003 to 30th September, 2003.
Notification No. 92/2003 Dated 17.04.2003, Notification No. 93/2003 Dated 22.04.2003, Notification No. 94/2003 Dated 25.04.2003 and Notification No. 95/2003 to No. 101/2003 Dated 30.04.2003 :
“AITA Trus, New Delhi” Notified for Purpose of Section 10(23)
M/s. Dr. Jivraj Mehta Smarak Health Foundation, Ahmedabad Approved U/S 35(1)(ii)
Netaji Research Bureau, Kolkata Notified U/S 10(23C)(iv)
Foundation for Revitalisation of Local Health Traditions,Banglore Approved U/S 35(1)(ii)
Sri Sri Sarbamangala Trust Borad, Burdwan specified U/S 80G(2)(b) subject to certain conditions
Shri Krishna Janmasthan Seva Sansthan, Katra Keshav Dev, Mathura notified U/S 10(23C)(v)
Bombay Iron & Steel Labour Board, Kakambali, Dist. Raidad, Maharashtra notified U/S 10(23C)(iv)
Krishnagopal Ayurvedic Dharmath Aushdhayala Trust, Ajmer Notified U/S 10(23C)(iv)
Shri Anandpur Trust, New Delhi Notified U/S 10(23C)(iv)
M/s. The Eye Research Foundation, Chennai Approved U/S 35(1)(ii)
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CBEC Excise Tariff
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Circular No. 28/712/2003 Dated 05.05.2003 : Taking into account the number of cases pending adjudication and in the background of recommendations of PAC, Board has revised the target of adjudication for each adjudicating authority separately from 75 cases per annum to 100 cases per annum with immediate effect. Board is of the view that the target of adjudicating 100 cases per annum is achievable and this should ensure against mounting pendencies in the future. Accordingly, Board desires that the revised target should be adhered to by all adjudicating officers without fail.
Notification No. 36/2003 Dated 30.04.2003 : The Central Government, has exempted first clearances for home consumption, upto an aggregate value not exceeding twenty five lakh rupees made on or after the 1st day of April in any financial year, of following goods falling under the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), namely,-
(i) Fabrics falling under sub-heading No. 5406.10 made from monofilament of sub-heading No. 5404.10;
(ii) rubberized textile fabrics falling under heading No. 59.06;
(iii) woven and unprocessed cotton belting falling under Chapter 52 or 59; or
(iv) round mesh mosquito net fabrics falling under sub-heading No. 6002.43
from the whole of the duty of excise specified thereon in the First Schedule to the said Central Excise Tariff Act and First Schedule to the said Additional Duties of Excise (Goods of Special Importance) Act subject to conditions specified.
Notification No. 35/2003 Dated 30.04.2003 : The Central Government, has exempted first clearances for home consumption, upto an aggregate value not exceeding twenty lakh rupees made on or after the 1st day of April in any financial year, of fabrics, not subjected to any process falling under Chapter 51, 52, 54, 55, 58 or 60 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), from the whole of the duty of excise specified thereon in the First Schedule to the said Central Excise Tariff Act and the First Schedule to the said Additional Duties of Excise (Goods of Special Importance) Act subject to conditions specified.
Notification No. 34/2003 Dated 30.04.2003 : The Central Government, has exempted first clearances for home consumption, upto an aggregate value not exceeding twenty five lakh rupees made on or after the 1st day of April in any financial year, of readymade garments and clothing accessories, not bearing a brand name or trade name, whether registered or not, of another person, falling under chapter 61 or 62 of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), from the whole of the duty of excise specified thereon in the First Schedule to the said Central Excise Tariff Act subject to conditions specified.
Circular No. 27/711/2003 Dated 30.04.2003 : It has been decided to do away with the requirement of furnishing of security of 25% of bond amount or surety of full bond amount in respect of merchant exporters who are registered with recognised Export Promotion Councils. Accordingly, it is clarified that specified categories of merchant exporters namely status holders (Super Star Trading House, Star Trading House, Trading House, Export House) and exporters registered with recognized Export Promotion Councils would be exempt from furnishing security and/ or surety with the bond executed by them for export of goods without payment of duty unless they have come to the adverse notice of the Department.
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CBEC Excise Non Tariff
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Notification No. 42/2003 NT Dated 01.05.2003 : In sub-rule (4), for the figures and words “2nd day of May, 2003”, the figures and words “12th day of May, 2003” have been substituted.
Notification No. 40/2003 NT Dated 30.04.2003 : In rule 9A, after sub-rule (4), sub-rule (5) has been
inserted.
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CBEC Customs Tariff
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Circular No. 39/2003-Cus. Dated 07.05.2003 : According to reports received by the Board, some unscrupulous importers are misdeclaring grades of raw silk consignments in order to avoid payment of anti dumping duty. Therefore, custom authorities have been instructed that the consignments coming from China may be regularly checked and got tested for the grade. However, to ensure that clearance is not delayed, the consignments may be cleared without waiting for test report, taking a test bond with suitable Bank Guarantee from the importers.
Circular No. 38/2003-Cus. Dated 06.05.2003 : It has been clarified that the notification 2/95-CE dated 1.4.1995, allows concessional duty only when goods were sold into DTA in accordance with para 6.8(or 9.9) of the policy. What is covered in para 6.8 (or 9.9) of the policy has been clarified by Ministry of Commerce in Appendix 14-IH of the Handbook of Procedures, 2002-2007 (Appendix 42 of the Hand Book of Procedures
Vol-I -1997-2002) that it covers any clearance to another DTA unit. Thus it is not open to the Department to interpret the Exim Policy in any other manner than what has been mentioned in Appendix 14-IH (or 42). The word DTA sale has been loosely used in the Exim Policy and there is no definition of DTA Sale in the Policy. Appendix 14-IH (or 42) clarifies that it not only covers transfers through sales to DTA units but also through other means. It would be illogical to contend that the concession is available if the goods are transferred on sale to an independent unit but it would not be available when removed on stock transfer to another division/unit of the same company.
Notification No. 75/2003 Dated 02.05.2003 : In the said notification, after paragraph seven, the following paragraph shall be inserted,
“This notification shall remain in force upto and inclusive of the 5th day of May, 2004, unless the notification is revoked earlier.”.
Notification No. 74/2003 Dated 01.05.2003 : Central Government has rescinded the notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue), No. 50/2002-Customs, dated the 2nd May, 2002, published in Part II, Section 3, Sub-section
(i) of the Gazette of India, Extraordinary, dated the 22nd May, 2002 vide No.
G.S.R. 316(E), dated the 2nd May, 2002, except as respects things done or omitted to be done before such rescission.
Notification No. 73/2003 Dated 01.05.2003 : Anti-Dumping Duty has been imposed on vitrified and porcelain tiles originating in, or exported from, the People's Republic of China and United Arab Emirates
(UAE)
Notification No. 72/2003 Dated 01.05.2003 : Central Government has rescinded the notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue), No. 79/98-Customs, dated the 22nd October, 1998, published in Part II, Section 3, Sub-section
(i) of the Gazette of India, Extraordinary, dated the 22nd October, 1998 vide No.
G.S.R. 636(E), dated the 22nd October, 1998, except as respects things done or omitted to be done before such rescission.
Notification No. 71/2003 Dated 01.05.2003 : Anti-Dumping Duty has been imposed on D (-) Para Hydroxy Phenyl Glycine Base originating in, or exported from, the European Union
Notification No. 70/2003 Dated 30.04.2003 ) : Central Government has rescinded the notification of the Government of India in the erstwhile Ministry of Finance (Department of Revenue), Nos.32/2000-Customs, dated the 28th March, 2000 and 157/2000-Customs, dated the 27th December, 2000, except as respect things done or omitted to be done before such rescission.
Notification No. 69/2003 Dated 30.04.2003 : In the said notification, in the opening paragraph, for the entry “15%”, the entry “10 per cent.” has been substituted.
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RBI
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Circular No. A.P.(DIR Series) Circular No.101 Dated 05.05.2003 : It has now been decided that where the loan amount so raised for purchase of residential accommodation is subsequently repaid by
NRIs/PIOs by remitting funds from abroad or by debit to their NRE/FCNR accounts such repayments in foreign exchange of rupee loans obtained for acquiring residential accommodation may be treated as equivalent to foreign exchange received for the purpose of clause (iii) of sub-regulation (b) of Regulation 6 of Notification No.FEMA 21/2000-RB dated 3rd May 2000 referred to above, as amended from time to time. Accordingly, it will be in order for authorised dealers to allow repatriation of sale proceeds of residential accommodation purchased by
NRIs/PIOs out of funds raised by them by way of loans from the authorised dealers/housing finance institutions to the extent of such loan/s repaid by them out of foreign inward remittances received through normal banking channel or by debit to their
NRE/FCNR accounts.
Circular No. A.P.(DIR Series) Circular No.100 Dated 02.05.2003 : It has now been decided that authorised dealers may consider the applications received from exporters and grant permission for opening / hiring of warehouses abroad subject to the following conditions : -
a) Applicant’s export outstanding does not exceed 5 per cent of exports made during the previous year.
b) Applicant has a minimum export turnover of USD 1,00,000/- during the last year.
c) Period of realisation should be as applicable i.e., 180 days for non-status holder exporters and 365 days for status holder exporters.
d) All transactions should be routed through the designated branch of the authorised dealer.
Circular No. A.P.(DIR Series) Circular No.99 Dated 30.04.2003 : With a view to implement the recommendation, Reserve Bank has developed a software package captioned
"NRD-CSR", for reporting the data on non-resident deposits through floppy disks on monthly basis as indicated therein. The banks receiving and maintaining Non-Resident Deposits are accordingly required to submit the data in CSR format on monthly basis with effect from April 2003 onwards through electronic media i.e. floppy/ email. To facilitate the banks in this
endeavour, the NRD-CSR package is being supplied to all the banks for the use of their head offices as well as their branches.
Circular No. A.P. (DIR Series) Circular No.98 Dated 29.04.2003 : It has been decided to enlarge the scope of forward contracts to cover the following transactions.
1. Inflows under Foreign Direct Investment
It has now been decided to permit residents outside India to enter into forward sale contracts with Authorised Dealers in India to hedge the currency risk arising out of their proposed Foreign Direct Investment in India.
2. Transactions denominated in foreign currency and settled in Indian Rupees
It has been decided to permit booking of forward contracts for hedging such transactions. These contracts shall be held till maturity and cash settlement would be made on the maturity date by cancellation of the contracts.
3. Cross Currency Forward Contracts for balances in FCNR(B) Accounts
It has been decided to allow deposit holders to book cross currency (i.e. not involving the rupee) forward contracts to convert the balances in one foreign currency to another foreign currency in which
FCNR(B) deposits are permitted to be maintained, at the option of the account holder.
Circular No. A. P. (DIR Series) Circular No.97 Dated 29.04.2003 : As a measure of further
liberalisation, it has been decided to permit Indian corporates and resident individuals to invest within the respective ceilings as applicable, in rated bonds/fixed income securities also. The rating should be at least A-1/ AAA by Standard & Poor or P-1/ Aaa by Moody's or F1 /AAA by Fitch IBCA etc. for short term obligations and corresponding ratings for long term ones.
Circular No. A.P.(DIR Series) Circular No.96 Dated 28.04.2003 : With Reference
to A.P. (DIR Series) Circular No.66 dated January 13, 2003 advising certain
liberalisation measures in respect of overseas direct investment by various
categories of investors, clarification on certain issues have been issued as
specified
Notification No. DBOD. BP. BC. 106/ 21.04.048/2002- 2003 Dated 07.05.2003 : With
reference to paragraph 130 of the Statement on "Monetary and Credit Policy
for the year 2003-04" enclosed with Governor's letter No. MPD. BC. 230/
07.01.279/ 2002-03 dated April 29, 2003. Paragraph 5(A)(a) of the Annexure to
our circular DBOD No. BP.BC 96/21.04.048/2002-03 dated April 23, 2003 which
provides guidelines on sale of financial assets to securitisation/reconstruction
companies by banks/FIs, if the sale of assets to securitisation/reconstruction
companies is at a price below the net book value (i.e., book value less
provisions held), the shortfall should be debited to the profit and loss account
of that year. It is envisaged that banks would be able to sell their NPAs to
securitisation/reconstruction companies at considerable discount. With a view to
enabling banks to meet the resultant shortfall, if any, banks are advised to
build up provisions significantly above the minimum regulatory requirements for
their NPAs, particularly for those assets which they propose to sell to
securitisation/reconstruction companies.
Notification No. DBOD. BP. BC. 105 / 21.01.002/ 2002- 2003 Dated 07.05.2003 : As suggested by banks and to give further relaxation in building Investment Fluctuation Reserve
(IFR), it has been decided that while IFR would continue to be treated as Tier II capital, it would not be subject to the ceiling of 1.25 per cent of the total risk weighted assets. However, for the purpose of compliance with the capital adequacy norms, Tier II capital including
IFR, would be considered up to a maximum of 100 per cent of total Tier I capital. The above treatment would be effective from March 31, 2003 onwards.
Notification No. DBOD. Leg. No.BC. 104 /09.07.007/2002-03 Dated 05.05.2003 : On the basis of the recommendations of the Working Group on Lenders’ Liability Laws constituted by the Government of India, the feasibility of introducing the Fair Practices Code for Lenders has been examined. The guidelines have since been finalised and banks/ all India Financial Institutions have been advised to adopt the specified broad guidelines and frame the Fair Practices Code duly approved by their Board of Directors.
Notification No. IECD.No. 19 /08.15.01/2002-03 Dated 30.04.2003 : In order to provide further flexibility to both issuers and investors in the CP market, it has been decided that non-bank entities including corporates may provide unconditional and irrevocable guarantee for credit enhancement for CP issue provided :
(i) the issuer fulfils the eligibility criteria prescribed for issuance of CP;
(ii) the guarantor has a credit rating at least one notch higher than the issuer by an approved credit rating agency and
(iii) the offer document for CP properly discloses: the networth of the guarantor company, the names of the companies to which the guarantor has issued similar guarantees, the extent of the guarantees offered by the guarantor company, and the conditions under which the guarantee will be invoked.
Notification No. IECD No. 18 /04.02.01/2002-03 Dated 30.04.2003 : With reference to circular IECD.No.7/04.02.01/2002-03 dated September 23, 2002, the validity of the interest rates on rupee export credit effective from September 26, 2001 would now remain in force upto October 31,2003.
Circular No. MPD. BC.235/07.01.279/ 2002-03 Dated 29.04.2003 : With a view to improving transparency and strengthening efficiency in the market, it has been decided that from the fortnight beginning May 3, 2003, it would be mandatory for all NDS members to report all their call/notice money market deals on
NDS. Deals done outside NDS should be reported within 15 minutes on NDS, irrespective of the size of the deal or whether the counterparty is a member of the NDS or not.
Circular No. MPD. BC.234/07.01.279/ 2002-03 Dated 29.04.2003 : In view of the encouraging developments in the functioning of
NDS/CCIL, it is desirable to accelerate the progress of moving towards a pure inter-bank call/notice money market and facilitate further deepening of
repo/term money market. Accordingly, it has been decided that effective from the fortnight beginning June 14, 2003, under stage II, non-bank participants would be allowed to lend, on average in a reporting fortnight, up to 75 per cent of their average daily lending in call/notice money market during 2000-01.
Circular No. MPD. BC.233/07.01.279/ 2002-03 Dated 29.04.2003 : In order to increase the efficacy of liquidity adjustment facility
(LAF) operations, and in view of rationalising the multiplicity of rates at which liquidity is injected, it has been decided that:
(i) The "back-stop" interest rate will be at the reverse repo cut-off rate at which funds were injected earlier during the day in the regular LAF auctions.
(ii) Where no reverse repo bid is accepted as part of LAF auction, the "back-stop" interest rate will generally be 2.0 percentage points over the repo cut-off rate of the day under
LAF.
(iii) On the days when no bids for repo or reverse repo auctions are received/accepted, the "back-stop" interest rate will be decided by RBI on an ad hoc basis.
Circular No. MPD. BC.232/07.01.279/ 2002-03 Dated 29.04.2003 : In the mid-term Review of the Monetary and Credit Policy in October 2002, it was indicated that interest rates on post-shipment rupee export credit beyond 90 days and upto 180 days would be deregulated with effect from May 1, 2003. In response to the suggestion received from the exporting community, in the present uncertain geopolitical environment, it has been decided to continue extending refinance facility to eligible export credit remaining outstanding under post-shipment rupee credit beyond 90 days and up to 180 days.
Press Release No. 1110/2002-03 Dated 29.04.2003 : Effective from April 30, 2003, the back-stop interest rates will be fixed as under :
1. The `back-stop' interest rate will be at the reverse repo cut-off rate at which funds were injected earlier during the day in the regular LAF auctions.
2. Where no reverse repo bid is accepted as part of LAF auction, the `back-stop' interest rate will generally be 2.0 percentage points over the repo cut-off rate of the day under
LAF.
3. On the days when no bids for repo or reverse repo auctions are received/accepted, the `back-stop' interest rate will be decided by the Reserve Bank of India on an ad hoc basis.
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DGFT
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Trade Notice No. 1/2003 Dated 05.05.2003 : It is clarified that it is not the intention of Trade Notice No-4 dated 28.5.2002, which was superceded by Trade Notice No-11 dated 25.9.2002, not to allow the supplies of capital Goods, raw material for making capital goods for use within the unit and others as specified in para (d), (e) and (f) of para 7.2 of Appendix-14-I of Handbook of Procedures
Vol-I. Therefore it is further clarified that the Trade Notice No-11 dated 25.9.2002 is applicable only when the
EOUs/EPZs/EHTPs/STPs are procuring material in terms of para 7.2 (a) of Appendix - 14-I of handbook of Procedures
Vol-I.
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Department of Post
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Notification No. GSR333(E) Dated 10.04.2003 : Central Government has published the Telecom Regulatory Authority of India (Contributory Provident Fund) Rules, 2003 to be effective from 10.04.2003
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Ministry of Environment
and Forest
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Notification No. SO462(E) Dated 23.04.2003 : The Central Government has recognised the laboratories specified below as environmental laboratories and for that purpose makes the amendment in the notification of the Government of India in the Ministry of Environment and Forests, number
S.O. 728 (E), dated the 21st July, 1987 by inserting S. NO. 110, 111 and 112.
1. M/s Sophisticated Industrial Materials Analytic Labs Private Limited.
2. M/s Arbro Pharmaceuticals Limited.
3. M/s Nuchem Limited, Laboratory, Environment Management Centre
Notification No. SO460(E) Dated 22.04.2003 : In the said notification, in paragraph 3, in sub paragraph (2), for clause (iv), the following clauses have been substituted,
"(iv) Demolition or reconstruction of -
(i) buildings of archaeological or historical importance;
(ii) heritage buildings; and
(iii) buildings under public use.
Explanation :- For the purpose of this clause iv, 'public use' shall include use for purposes of worship, education, medical care and cultural activities.
(v) All other activities with investment of five crore rupees or more:
Provided that activities involving investment of less than five crore rupees shall be regulated by the concerned authorities at the State or Union territory level in accordance with the provisions of sub paragraph (2) of paragraph 6 of Annexure-I of this notification."
Notification No. SO447(E) Dated 18.04.2003 : The Central Government has empowered the Director of Wild Life Preservation and Assistant Director, Wild Life Preservation for that Government and in case of a State Government, the Chief Wild Life Warden and all officers not below the rank of the Deputy Conservator of Forests to exercise the powers in terms of section 54 of the Wild Life (Protection) Act, 1972.
Notification No. SO446(E) Dated 18.04.2003 : The Central Government has authorized all the officers not below the rank of a Deputy Inspector General of Police to exercise the powers of section 58E of the Wild Life (Protection) Act, 1972.
Notification No. SO445(E) Dated 18.04.2003 : The Central Government has made the Wild Life Stock Rules, 2003 to be effective from 18.04.2003.
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Supreme Court |
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On
13th December, 2001 five terrorist attacked the Parliament of
India. After an encounter, with the security forces, the five terrorists
were shot dead. A F.I.R. was lodged by the Station House Officer, Police
Station, Parliament Street. A case under Sections 120, 120B, 121, 121A,
122, 124, 186, 332, 353, 302, and 307 IPC, Sections 3, 4 and 5 of the
Explosive Substances Act and Sections 25 and 27 of the Arms Act was
registered. Investigation was then initiated.
The
charge-sheet was filed on 14th May, 2002 and the copy of the
transcripts of the intercepted conversation were given to the accused
along with the charge sheet. On 8th July, 2002 the
respondents applied before the Special Judge seeking a direction that
the intercepted conversation not be used as evidence in the trial for
proving the charge/s under POTA.
Special Judge chose to hear detailed arguments and by his order dated 11th
July, 2002, dismissed the applications.
Respondent
filed an appeal under Section 34, POTA Petition and was placed before a
single Judge of the High Court, By the impugned judgment the High Court
has disposed of all the above Petitions/Applications.
The
question before the Supreme Court was whether, on the facts of this
case, the High Court could or should have exercised power under Article
227 or under Section 482.
The
Hon'ble Supreme court held that the order dated 11th July, 2002 was
clearly an interlocutory order. Section 34, POTA clearly provides that
no appeal or revision would lie to any Court from an order which was an
interlocutory order. As stated above the impugned order is a common
order in all Applications/Petitions.The Court held that it was a settled
law that the power of judicial superintendence, under Article 227, must
be exercised sparingly and only to keep subordinate Courts and
Tribunal's within the bounds of their authority and not to correct mere
errors. Further where the statute bans the exercise of revisional powers
it would require very exceptional circumstances to warrant interference
under Article 227 of the Constitution of India. The inherent power
under Section 482 of the Criminal Procedure Code is to be used only in
cases where there is an abuse of the process of the Court or where
interference is absolutely necessary for securing the ends of justice.
This power should not be exercised against an express bar of law
engrafted in any other provision of the Criminal Procedure Code. This
power cannot be exercised as against an express bar in some other
enactment. The respondents by filing the Application/Petitions and the
learned Judge having chosen to entertain them, has resulted in a party
being deprived of an opportunity of canvassing an important point of law
in the statutory Appeal before the division bench. The peculiar
situation is that the division bench, hearing a statutory appeal (both
on law and facts) is bound/constrained by an order of a single Judge. Even
if the High Court did not agree with the correctness of that order, the
High Court should have refused to interfere as the order could be
corrected in the appeal under Section 34, POTA. The Court further
held that even if powers under Section 227 or under Section 482
could have been exercised, this was a case where the High Court should
not have exercised those powers |
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