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Legislative and Regulatory Update
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[No.56]
July 20, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
A state administrative provision that absolutely barred parolees from traveling
internationally throughout the term of their parole, as applied to a parolee who
wished to travel to the Philippines in order to marry a woman with whom he had
been corresponding while incarcerated, did not violate the parolee's
constitutionally protected right to marry. The provision did not operate as an
absolute prohibition on the parolee's right to marry, but merely affected the
timing or place of his marriage plans. The rule was amply justified by the
state's desire to avoid losing all right to supervise the parolee once he was
outside the United States.
Williams v. State of Wisconsin
The convictions against two defendants charged with the murder and robbery of a
Las Vegas casino owner were reversed based on the trial court's erroneous
failure to sever charges against one of the defendants relating to a marginally
relevant incident involving the extortion and assault of a different victim. The
failure to sever was prejudicial error, given that the evidence of extortion and
assault was graphic, and the State's weaker case on the murder and robbery
counts was bolstered by the stronger case against one defendant on the extortion
and assault counts.
Tabish v. State
A civil securities fraud action by retirement funds for government employees
in Alabama was stayed on Fifth Amendment grounds against WorldCom's former Chief
Executive Officer, Bernard Ebbers, and WorldCom's former Chief Financial
Officer, Scott Sullivan. A trial court had stayed the action against Sullivan,
who had been indicted for securities fraud, and the Alabama Supreme Court held
that the trial court abused its discretion in not staying the action against
Ebbers, who was the subject of an active criminal investigation. However,
WorldCom's investment banks were not entitled to a stay. The banks claimed that
their defense of good faith and due diligence would be thwarted if they could
not obtain discovery from Ebbers and Sullivan, but the Alabama Supreme Court
held that it appeared that the banks were as well off, or better off, with
Ebbers and Sullivan self-muzzled and unable to contradict the banks' assertions
of due diligence.
Ex parte Ebbers
Vacating of the final rule designating the critical habitat for the Alameda
whipsnake, upon remand, was warranted in light of the district court's
determination that the designation violated the Endangered Species Act and the
Administrative Procedure Act on numerous grounds. Although the existence of the
critical habitat designation did not impose significantly greater burdens on
trade associations, the state chamber of commerce, and private landowners than
were imposed by the listing of the whipsnake as threatened under the ESA, the
statutory protections afforded by designating the critical habitat paralleled
those afforded by the listing itself. Therefore, vacating the rule would not
expose the whipsnake to significantly greater threats of extinction.
Home Builders Ass'n of Northern California v. U.S. Fish and Wildlife Service
In an alleged infringer's action for a declaratory judgment that its air safety
valves did not infringe on a patent, the limited scope of the patentee's
contacts in the district warranted that venue be transferred to another
district. The patentee's contacts were insufficient to justify the district
court's exercise of personal jurisdiction over it based on its residency in the
district. The patentee's alleged residency in the district formed the basis for
the alleged infringer's claim that venue in the district was proper.
Injen Technology Co., Ltd. v. Advanced Engine
Mangement, Inc.
News
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New
York Court of Appeals has in Allen v. Commissioner of Labor
held that physical , not virtual presence governs eligibility for
unemployment insurance benefits. For the first time any state or federal
court has applied uniform definition of "employment" to
telecommuting for the purpose of unemployment benefits. It said that
definition, adopted by most states, is premised on the goal of providing
benefits in the locale where the unemployed individual resides and is most
likely to seek another job. Judge Susan Phillips wrote" While the
drafters of the uniform rule could not have envisioned a world of interstate
telecommuting, these underlying purposes remain valid, and are best served
by tying localization to the state in which an interstate telecommuter is
physically present,"
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11th
U.S. Circuit Court of Appeals has rejected to rehear a case on groundless
cash seizure by Drug Enforcement Administration agents. The ruling
held that there was no probable cause to take $242,484 from Deborah
Standford at Miami International Airport in December 1998.This ruling comes
in light with the Civil Asset Forfeiture Reform Act of 2000 (CAFRA) which
places the burden of proof on prosecutors to show that seized assets are
result of criminal activity rather than forcing the assets' owners to show
that they are not.
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Wal-Mart
Stores Inc. has filed suit on Tuesday in a Delaware court to stop Kmart from
using similar devices as bag carousels, on which Wal-Mart holds a patent.
Carousel make the work of the cashier easier by holding blue plastic
shopping bags. The cashier drops items into bags as merchandise is rung up,
and spins the rack to make the effort easier for both the cashier and the
customer lifting out the bags.
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Microsoft
has admitted a critical flaw in almost all versions of
its Windows operating system software affecting users of both PC and server
versions of the company's primary OS software. The software is aimed at
large corporate customers. The company has urged its customers to
immediately install repair software available free from Microsoft's web site
as the flaw could allow hackers to seize control of a victim's
computer over the internet, steal data, delete files or eavesdrop on
e-mails.
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Cisco
Systems Inc., the leading maker of networking equipment, has admitted flaw
in its Networking Software. Such a flaw could allow the hackers to shut down
routers and switches that carry much of the world's Internet traffic.
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A
new bill has been introduced in U.S. against file sharing, which would
impose a fine of a quarter of a million US dollars and a five-year
stay in jail for uploading a single file to a peer-to-peer network. The bill
is the strongest attempt to deter the widespread online song copying
that has led to a decline in CD sales. The bill aims to
"encourage the development and distribution of creative works by
enhancing domestic and international enforcement of the copyright laws, and
for other purposes."
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Music
Industry in U.S has issued 871 federal subpoenas against computer users
suspected of illegally sharing music files on the internet this month.
According to US court officials, roughly 75 new subpoenas are being approved
each day. The effort represents early steps in the music industry's
contentious plan to file civil lawsuits aimed at crippling online piracy.
The campaign comes just weeks after U.S. appeals court rulings requiring
Internet providers to readily identify subscribers suspected of illegally
sharing music and movie files.
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2nd
U.S. Circuit Court of Appeals has clarified the standard for evaluating the
consequences of a deficient benefits plan description under the Employment
Retirement Income Security Act. The court said that a a person who is denied
benefits must show only that he or she is "likely prejudiced" by a
Summary Plan Description (SPD) that inaccurately describes requirements for
receiving benefits.
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PeopleSoft
Inc. has completed its acquisition of J.D. Edwards & Co., a purchase
which is likely to pose obstacles in Oracle Corp. hostile takeover bid for
PeopleSoft. The purchase of 110 million J.D. Edwards shares represents 88
percent of the stock. PeopleSoft said it expects to acquire the remaining
shares before the end of August.
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SEBI
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Secondary Market Division
Notification No. SO799(E) Dated 07.07.2003 : A new clause 53 relating to Maintenance/disposal of Arbitration Records, has been inserted after clause 52 in Chapter XIII of the Bye-laws
Notification No. SO789(E) Dated 09.07.2003 : In view of the various corrective measures taken by the Administrator, some of which would require sustained follow up action, to further streamline the functioning of the Exchange in the interest of investors and time required to complete the process of election and constitution of the new Governing Board and also to complete the process of Demutualisation and Corporatisation, the period of supersession of the Governing Board has been extended for a further period of six months.
Notification No. SO775(E) Dated 08.07.2003 : Renewal of recognition has ben granted to the Exchange for a further period of one year commencing on the 10th day of July 2003 and ending on the 9th day of July 2004 in respect of contracts in securities, subject to the conditions stated.
Mutual Funds
Circular No. SEBI/IMD/CIR No. 7 / 13391 /03 Dated 11.07.2003 : SEBI had earlier issued a set of guidelines on the above subject vide Circular No. MFD/CIR No.4/216/2001 dated May 08, 2001. Subsequently SEBI (Insider Trading) Regulations were also notified. With an objective to bring about uniformity in the requirements and to remove difficulty in the implementation of guidelines, certain clarifications have been issued after consultation with AMFI.
Regulations
Notification No. SO796(E) Dated 11.07.2003 : SEBI has issued the Securities and Exchange Board of India (Prohibition of Insider Trading) (Amendment) Regulations, 2003 to be effective from 11.07.2003.
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CBEC Customs Tariff
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Notification No. 108/2003 Dated 14.07.2003 : In the said notification, for the words “Ministry or Department”, wherever they occur, the words “Ministry or Department or Council of Scientific and Industrial Research under the New Millennium Indian Technology Leadership Initiative Scheme” have been substituted.
Notification No. 105/2003 Dated 10.07.2003 : In the said notification, in condition (v), in the proviso, after the words "complied with," occurring at the end, the words, "together with interest at the rate of fifteen percent per annum from the date of clearance of goods;" have been inserted.
Notification No. 104/2003 Dated 10.07.2003 : Central Government, has rescinded the Notification No. 117/94-Customs, dated the 27th April, 1994, except as respect things done or omitted to be done before such rescession.
Notification No. 102/2003 Dated 07.07.2003 : Central Government has rescinded the Notification No. 20/1998-Customs, dated the 5th May, 1998 except as respects things done or omitted to be done before such rescission.
Notification No. 101/2003 Dated 07.07.2003, No. 103/2003 Dated 09.07.2003, No. 106/2003 Dated 10.07.2003, 107/2003 Dated 10.07.2003 and No. 109/2003 Dated 14.07.2003 :
Anti Dumping Duty has been imposed on Graphite Electrodes, Green Veneer Tape, Mulberry Raw Silk (not thrown) 2A grade and below, Titanium dioxide Anatase Grade and Ammonium Nitrate.
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Service Tax
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Circular No. 61/10/2003 Dated 14.07.2003 : Section 22 of the Prasar Bharati ( Broadcasting Corporation of India) Act, 1990 has been omitted vide secton 163 of the Finance Act, 2002 with effect from 1st April 2003. In light of the above, with effect from 1st April 2003 the protection under section 22 of the Prasar Bharati (Broadcasting Corporation of India) Act, 1990 is no longer available to the Prasar Bharati Corporation ( Doordarshan and All India Radio) and they are liable to pay the Service Tax as the provider of the Broadcasting Services with effect from 1st April 2003.
Circular No. 60/9/2003-ST Dated 10.07.2003 : It is clarified that the handling/storage and warehousing of empty containers would be covered within the scope of storage and warehousing services, as it is covered under the heading goods under section 65(87) of the Finance Act, 1994. The Service Tax would be levible on it. Further, the clarification issued vide letter No. F.B.II/I/2002/TRU dated 1.8.2002 regarding empty containers not to be considered as Cargo for Cargo Handling Services, has no relevance.
Notification No. 16/2003 Dated 11.07.2003 : Central Government, has exempted the taxable service provided by an insurer carrying on General Insurance Business to a policy holder in relation to general insurance business provided under the Universal Health Insurance Scheme, from the whole of the service tax leviable thereon under Section 66 of the said Act.
Notification No. 15/2003 Dated 10.07.2003 : (a) in the condition (ii), for the words “Chief Commissioner of Central Excise”, the words “Commissioner of Customs or the Commissioner of Customs and Central Excise, as the case may be,” have been substituted;
(b) in the condition (iii), for the words “ Commissioner of Central Excise”, the words “Commissioner of Customs or the Commissioner of Customs and Central Excise, as the case may be,” has been substituted.
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Ministry of Information and Broadcasting
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Notification No. SO792(E) Dated 10.07.2003 : Central Government has notified the 1st day of March 2003 as the date within six months from which it shall be obligatory for every cable operator to transmit/retransmit programmes of every pay channel through an addressable system in the areas specified.
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RBI
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Circular No. A.P.(DIR Series) Circular No. 3 Dated 17.07.2003 : Attention has been invited to the existing limits for release of foreign exchange under Schedule III to Rule 5 of Foreign Exchange Management (Current Account Transactions) Rules, 2000 as amended from time to time. As a step towards further liberalisation, it has been decided to raise the present limits as specified.
Circular No. A.P. (DIR Series) Circular No.2 Dated 14.07.2003 : It is now clarified that the list of eligible goods for finance out of the credit annexed to specified A.P.(DIR Series) Circulars are only illustrative and indicative in nature. Capital goods, plant and machinery, industrial manufactures, consumer durables and other items which are eligible for being exported under the Exim Policy of the Government of India will be eligible for being financed under the Line of Credit facility.
Notification No. DBS.FID.No. C- 2 /01.02.00/2003-04 Dated 10.07.2003 : The Reserve Bank of India has from time to time, issued a number of circulars to the FIs containing instructions on matters relating to norms for disclosures in the published annual reports. In order to enable the FIs to have all the current instructions on the subject at one place, the master circular has been prepared.
Notification No. DBOD. BP.BC. 3 / 21.04.141/ 2003- 2004 Dated 17.07.2003 : With a view to enabling banks to take benefit of the structure of tax incentives for the premium received under the buyback scheme, it has been decided to exempt banks from the requirement of appropriating the profit on sale of securities from HTM category to 'Capital Reserve Account', as a one time measure, only in respect of the identified securities which are sold to the Government of India under the scheme of Government of India's Debt Buyback Programme.
Notification No. DBOD. No. Dir. BC. 1/13.01.09/2003-04 Dated 17.07.2003 : RBI has directed that, until further notice, the interest rates on fresh repatriable NRE deposits for one to three years contracted effective July 17, 2003 should not exceed 250 basis points above the LIBOR/SWAP rates for US dollar of corresponding maturity.
Circular No. MPD.BC.237/07.01.279/2003-04 Dated 17.07.2003 : In order to provide consistency in the interest rates offered to non-resident Indians, it has been decided that, until further notice, the interest rates on fresh repatriable NRE deposits for one to three years contracted effective July 17, 2003 should not exceed 250 basis points above the
LIBOR/SWAP rates for US dollar of corresponding maturity. For purposes of operational convenience, the interest rates could be rounded off to nearest decimal point. For example, a computed interest rate of 3.67 per cent would become 3.7 per cent, and 3.64 per cent would become 3.6 per cent.
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DGFT
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Notification No. 16(RE-2003)/ 2002-2007 Dated 17.07.2003 : Central Government has made amendments in the ITC(HS) Classification of Export and Import items, 2002-2007 as amended from time to time.
Trade Notice No. 02 / 2002-2007 Dated 15.07.2003 : It has been decided that till such time the problem in issuance of PAN numbers persists, IECs to the applicants will be issued with dummy PAN incorporated into it. As soon as PAN is made available to the Importer/Exporter by the Income Tax Authorities, he will submit IEC for incorporating it in IEC database. In all cases where IECs are being issued without PAN, the concerned Commissioner of Customs will be requested to allow manual clearance against the IEC issued. After incorporation of the exact PAN on receipt from the IEC holders, the IEC data will be transmitted to DGFT/Customs for generation of BIN number (BIN).
Circular No. 12 (RE-2003)/2002-2007 Dated 11.07.2003 : Para 4.38 of Handbook of Procedures, Vol.1, as amended upto 31.3.2003, provides for fixation of DEPB rates applicable for a limited period by the DEPB Committee to promote and diversify the export of new products. These ad-hoc DEPB rates would be valid for a limited period of time during which the exporter would furnish the data on export and import for the regular fixation of rates. For implementation of the same the guidelines have been issued.
Circular No. 11 (RE 2003)/2002-2007 Dated 10.07.2003 : It has been decided that wherever firms want to avail of an EPCG licence to start production, the Regional Licencing Authorities may consider the unit as a manufacturer exporter if the unit furnishes the RCMC as a merchant exporter along with the provisional registration number (whether SSI or any other). However, in such cases the EPCG licences may be issued with 100% BG condition so as to safeguard against any eventuality of the units not commencing production. This 100% BG condition applies notwithstanding the provisions of Para 4.6 of the Handbook of Procedures ( Vol 1)
Public Notice No. 16/2002-07 Dated 10.07.2003 : (i) the last line of para 3 of the said Public Notice
has been amended to read as:
"The completed application forms along with required/prescribed documents for the items mentioned at Para 2 (I) (a), 2(1) (b) and 2(1) (d) must reach the Office of DGFT on or before 29th August.2003."
(ii) The Project and Equipment Corporation of India Ltd. (PEC)- A Government of India Enterprise shall also be, henceforth, an eligible entity for availment of the quota for the items specified.
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Department of Commerce
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- Final Findings on Anti-Dumping
Investigations
Notification No. 14/25/2002-DGAD Dated 10.07.2003 and Notification No. 14/28/2002-DGAD Dated 03.07.2003 : Final Findings on Anti-Dumping Investigation Concerning Imports of Vitamin C from USA and Canada and Anti Dumping Investigations Concerning Imports of Mulberry Raw Silk (not thrown) Originating in or Exported from China PR, have been published.
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Department of Information Technology
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Order No. SO529(E) Dated 07.07.2003 : As per the Gazette Notification (Extraordinary) No. G.S.R. 181(E) dated 27th February, 2003, published in Part-II, Section-3, Sub-section (i), Indian Computer Emergency Response Team (CERT-In) has been designated as the single authority for issuing of instructions in the context of blocking of websites. CERT-In has to instruct the Department of Telecommunications to block the website after,
(i) verifying the authenticity of the complaint
(ii) satisfying that action of blocking of website is absolutely essential
The detailed procedure for submitting a complaint to the Director, CERT-In for blocking of a website has been specified. |
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Ministry of Environment |
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Notification No. SO520(E) Dated 01.07.2003 : Central Government has made the Environment (Protection) Amendment Rules, 2003 to be effective from 01.07.2003.
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Supreme Court |
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The appellants appeared at the Combined State Services Examination of 1987. Results were declared on 29.12.1989. Writ petitions were filed by the appellants before the Allahabad High Court on the ground that the vacancies, which arose on account of selected candidates not joining, should have been filled and the appointments made subsequently were illegal. High court accepted the State Government plea that there was no waiting list as such and the vacancies were carried forward to the subsequent period as required in law and persons had already been appointed on the basis of subsequent examination and dismissed the writ petition. Appeal was filed in supreme court which held that If the employer fixes cut off position, same is not to be lightly tinkered with unless it is totally irrational or tainted with
malafides. Employer in its wisdom may consider a particular range of selection to be appropriate. It has not been shown as to how the fixation is irrational, much less
malafide. Accepting the prayer of the appellants would mean that the position which has assumed a sort of finality for more than a decade would be unsettled. The High Court was, therefore, justified in rejecting the writ petition filed by the appellant---Appeal Dismissed
Appeals were filed against the Division Bench judgment of the Bombay High Court which held that the age of retirement from flying duties of Air hostesses at the age of 50 years with option to them to accept post for ground duties after 50 and up to the age of 58 years is discrimination against them based on sex which is violative of Articles 14, 15 & 16 of the Constitution of India as also Section 5 of the Equal Remuneration Act, 1976 (for short the ER Act) and contrary to the mandatory directions issued by the Central Government under Section 34 of the Air Corporations Act, 1953 (for short Act of 1953). The Hon’able Supreme court held that early retirement age fixed for women for flying duties with option to them to go after 50 years of age to ground duties is a condition of service fixed after negotiations and settlements with association of air hostesses represented by
AICCA. Air India is a travel industry. Pleasing appearance, manners and physical fitness are required for members of the crew of both sexes. The air hostesses have agreed to the early retirement age, as they need an option to go for ground duties after the age of 50 years. The arguments advanced on behalf of respondent/association, therefore, cannot be accepted that the air hostesses are made to retire at an age earlier than males because of their falling physical appearance and it is a practice derogatory to the dignity of women. For services on board of an Air craft both male and female members of the crew are expected to be smart, alert and agile.
The early retirement age of 50 years from flying duties for female members of the crew with an option to them to accept ground duties beyond 50 years up to the age of 58 years being a service condition agreed to and incorporated in a binding agreement or settlement and award reached with the employer, the same cannot beheld to be either arbitrary or discriminatory under Articles 15 and 16 of the Constitution. It is not a discrimination against females only on ground of sex. The directives issued by the Central Government, therefore, also cannot be held to be in any manner in violation of Article 14, 15 and 16 of the Constitution or the provisions of Equal Remuneration Act, 1976.----Appeal Allowed.
This appeal is against the judgment rendered by a Division Bench of the Punjab and Haryana High Court, whereby the respondents herein were directed to be paid the minimum pay in the scale of pay applicable to the regular employees. The Hon’ble Supreme court held that a scale of pay is attached to a definite post and in case of a daily wager, he holds no posts. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. "Equal pay for equal work" is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.---Appeal Allowed |
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