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[No.59]
August 20, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The United States Supreme Court has denied an application by Roy S. Moore, the
Chief Justice of the Alabama Supreme Court, to recall a mandate and stay
enforcement of a final judgment requiring the removal of a Ten Commandments
monument in the rotunda of the Alabama State Judicial Building. The application
was presented to Justice Kennedy and by him referred to the United States
Supreme Court.
On July 1, 2003, the Eleventh Circuit determined that the placement of the
monument violated the Establishment Clause. The Eleventh Circuit stated that the
Chief Justice of the Alabama Supreme Court placed the monument, which weighed
two and one-half tons, as the centerpiece of the rotunda in the Judicial
Building, with the specific purpose of acknowledging the sovereignty of the
Judeo-Christian God over both the state and the church. According to the
Eleventh Circuit, the Chief Justice had a non-secular purpose, and the monument
had the primary effect of endorsing religion. Furthermore, no historical
background existed to bring the monument within the exception of Marsh v.
Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983), in which the
Supreme Court rejected a challenge to the Nebraska Legislature's practice of
employing a chaplain to lead it in prayer at the beginning of each session
In Re Roy S. Moore
A jury instruction allowing a permissive inference of the defendant's intent to
kill or inflict serious bodily harm upon a police officer in pursuit from the
fact that the defendant was carrying an unlicensed weapon did not violate the
defendant's due process rights by allegedly lowering the Commonwealth's burden
of proving the elemental fact of intent to inflict serious bodily injury beyond
a reasonable doubt. First, the Supreme Court rejected the claim that the state
constitutional due process clause provided more protection than the federal due
process clause, and therefore, appellate review of the defendant's due process
challenge was to determine whether the inference had a rational connection
within the context of the circumstances of the offense as produced at trial. In
this case, the inference was reasonable, in light of evidence that the defendant
was observed discharging the weapon at the officer at least twice in an attempt
to escape, after having discharged the gun at least three times at another man,
that the defendant admitted he intended to shoot the other man, and that he
admitted keeping the gun stashed behind an alley and used it for protection.
Com. v. Hall
New Jersey's Internet publication of the home addresses of convicted sex
offender registrants under the state's "Megan's Law" did not violate
the offenders' constitutional privacy rights. First of all, the right to privacy
of a convicted sex offender registrant in the registrant's home address gave way
to the state's compelling interest to prevent sex offenses. And notwithstanding
the nontrivial interest in one's home address, whatever privacy interest the
registrants had in their home addresses was substantially outweighed by the
state's interest in efficiently expanding the reach of its notification to
protect members of the public in addition to those currently in an offender's
community. Such additional members of the public who might benefit from Internet
publication of offenders' addresses included prospective home buyers and
prospective visitors to an offender's neighborhood.
A.A. ex rel. M.M. v. New Jersey
Agreeing with the Third Circuit, the Eleventh Circuit held that as long as an
attorney's conduct falls within the scope of the representation of his client,
such conduct is immune from an allegation of a § 1985 conspiracy to interfere
with civil rights. Thus, the alleged actions of attorneys for a majority
shareholder, of conspiring with the majority shareholder to intimidate and
threaten a minority shareholder into withdrawing his prior lawsuits against the
majority shareholder, if proven, could not be a basis for holding the attorneys
liable under § 1985(2), which prohibits conspiracies to intimidate parties or
witnesses to federal lawsuits. The issue was one of first impression in the
Eleventh Circuit. Few circuits had addressed the issue.
Farese v. Scherer
News
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Alabama Supreme Court's Chief Justice Roy Moore
has announced that he will continue to protest and fight against the removal of
the Ten Commandments monument from an Alabama judicial building after his
last minute appeal had been rejected on Wednesday for blocking the removal of
the monument. The Supreme Court said that they would not be drawn into a dispute
over, whether the monument violates the constitution's ban on government
promotion of religion. Chief Justice Roy Moore said the federal judge who
ordered the monument removed by today "placed himself above the law and
above God." Deadline given by the Federal judge expired at midnight
Wednesday.
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Citibank, US banking giant has warned people
that fraudulent e-mails are being sent asking users for their social security
numbers and other information. The mails also give a link to a website which
looks like the real Citi bank website. A spoke person for Citi bank said
"Although the e-mail appears to come from Citibank, it does not, and
Citibank is in no way involved in the distribution of this e-mail,"
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Two competitors of the Johnson & Johnson ,
Guidant Corp. of Indianapolis and Medtronic Inc. of Minneapolis, have been
ordered to pay damages totaling up to $700 million after losing Stent patent
disputes.Stents are tiny metal scaffolds inserted in a heart artery to keep it
open after a blockage has been cleared.
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Rejecting the arguments given by American Civil
Liberties Union that punch-card voting machines used in at least six counties
won't accurately tally votes, U.S. District Judge Stephen V. Wilson has refused
to delay the Oct. 7 election to recall Gov. Gray Davis. The judge said that he
will not rule against the will of the people by delaying the recall vote.
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Islamic Sharia Court in Nigeria has quashed the
stoning sentence of one Sarumi Mohammed for raping a nine year old girl on
grounds of insanity. Had his appeal failed, Sarumi Mohammed would have become
the first man to be executed by stoning for rape since twelve states in the
predominantly Muslim north of Nigeria adopted the strict Islamic Sharia penal
code in 2001.
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Eli Lily and Co. has dropped patent claim
against Dr. Reddy Laboratories for schizophrenia drug Zyprexa.Dr. Reddy's
had filed an application in March with the U.S. Food and Drugs Administration to
market orally disintegrating tablets of olanzapine, the active ingredient and
the generic name of Lilly's Zyprexa, challenging Lilly's patent.
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The Judge in the Kobe Bryant's case said on
Thursday said that the warrant that ordered the arrest of the NBA star on
charges of sexual assault should be released to public, but 15 days time
has been given to both sides to appeal. The documents have been sealed since the
Los Angeles Lakers star was arrested last month, but media organizations have
sought their release from Eagle County Judge Frederick Gannett. Kobe Bryant, a
24 year old of Los Angeles Lakers, was charged with sexual assault after a 19
year old woman told police he assaulted her at a mountain lodge in
Colorado on June 30th, where she worked and Bryant was staying.
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SEBI
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Primary Market Division
Circular No. SEBI/CFD/DIL/ DIP/ Circular No 11 Dated 14.08.2003 : SEBI, in its constant endeavor to enhance the level of investors' protection, to increase the transparency and efficiency of the primary market, to strengthen the disclosure and eligibility norms for issuer companies and to rationalize and simplify various operational procedures in the primary market so as to facilitate raising of resources by the issuer companies, has taken several initiatives, in this regard, based on the recommendations of the committees set up by SEBI. The SEBI Board, after considering the recommendations of the Committees and public comments thereon, has approved certain modifications to be incorporated in the Guidelines. The amendments are covered under the following heads.
Review of Eligibility Norms
Review of Book Building guidelines
Introduction of Green Shoe Option
Review of disclosure requirements in the offer documents
Review of requirements pertaining to issue of Debt Instruments
Modifications pursuant to amendments carried out on 30/06/2003, in SEBI (Employee Stock Option and Employee Stock Purchase Scheme) Guidelines, 1999
Amendments pursuant to withdrawal of the concept of Regional Stock Exchange by Ministry of Finance (MOF), Govt. of India, vide its circular dated 23/4/2003
Review of Operational/Procedural Requirements
Miscellaneous Amendments
Foreign Institutional Investors
Circular No. IMD/CUST/8/2003 Dated 08.08.2003 : Vide circular FITTC/CUST/14/2001 dated October 31, 2001 , SEBI had directed FIIs who have been issuing offshore derivative/financial instruments against underlying Indian securities to report issuance / renewal / cancellation / redemption of the aforesaid instruments to SEBI as per the format prescribed in the said circular. With a view to monitoring the investment by FIIs through derivative / financial instruments, it has been decided to revise the format for reporting the issuance / renewal / cancellation / redemption of the aforesaid instruments.
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Department of Company Affairs
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Notification No. G.S..R.641(E) Dated 07.08.2003 : The rules specify the investments to be made by Producer Companies
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CBDT
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- Institutions specified U/S 35AC(1)(b)
Notification No. 190-2003 to No. 198-2003 Dated 05.08.2003 : Ankleshwar Industrial Development Society, Bhagwan Mahaveer Cancer Hospital & Research Centre, Srinivasan Services Trust, Bhharat Sevashram
Sangha, Ramakrishna Mission Sevashrama, Katha, Smt. Tarabai Desai Charitable Opthalimic Trust, Mata Lachmi Rotary Charitable Society and National Association for Blind, have been Specified U/S 35AC(1)(b)
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CBEC Excise Tariff
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Circular No. 736/52/2003-CX Dated 11.08.2003 : The Task Force on Indirect Taxes headed by Dr. Vijay Kelkar has recommended extending the facility of self-sealing of export goods to all categories of exporters. As this measure would have significant effect on reduction of transaction cost and shall facilitate faster clearance of export goods, the facility of self- sealing and self- certification is extended to all categories of manufacturers-exporters subject to compliance with the existing procedure.
Circular No. 735/51/2003-CX Dated 07.08.2003 : Each Central Excise Commissionerate has been directed to establish one Tax Clinic for the small-scale sector in each division under the charge of Deputy/ Assistant Commissioner to guide small scale manufacturers. The said tax clinic shall be a step towards educating the small scale manufacturers about their legal responsibilities, guiding them in the conduct of their tax matters and breaking the communication wall, if any, between the small manufacturers and the tax administrators.
Circular No. 734/50/2003-CX Dated 07.08.2003 : It has been clarified that in order to operationalise the scheme
as provided in the Notification No.66 /2003-CE, the independent twisters would be required to maintain accounts of the inputs as well as of the finished product so as to ascertain the duty liability on each consignment of the finished product by working out the duties paid on the input that have gone into its manufacture. While no standardized format for maintenance of record
has been prescribed, it is requested that the jurisdictional commissioners may discuss the same with the concerned trade/trade associations to work out the modalities which should be simple and acceptable to trade while being transparent enough for audit verifications.
Circular No. 733/49/2003-CX Dated 06.08.2003 : It has been clarified that for availing Small Scale Industry Exemption Scheme Exemption under notifications No.8/2003-Central Excise and No.9/2003-Central Excise, both dated 1.3.2003, for the financial year 2003-04 the value of clearances for calculating the limit of Rs.3 crores for the preceding financial year 2002-03 includes the value of exempted goods (excluding exports) also.
Notification No. 66/2003 Dated 07.08.2003 : Central Government has exempted twisted filament yarns (including crepe yarn), when manufactured by an independent twister, from filament yarns, from so much of duty of excise leviable there on under the said First Schedule and so much of special duty of excise leviable there on under the Second Schedule to the said Central Excise Tariff Act, as is in excess of the amount of the said excise duty, the said special duty of excise or, as the case may be, the additional duty leviable under section 3 of the Customs Tariff Act, 1975 (51 of 1975) already paid on such filament yarns from which such twisted filament yarns have been manufactured.
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CBEC Customs Tariff
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Notification No. 129/2003 to No. 131/2003 Dated 14.08.2003 : The following amendment has been made in Notification No. 113/2003-CUSTOMS, dated the 22nd July, 2003, No. 114/2003-CUSTOMS, dated the 22nd July, 2003, No. 115/2003-CUSTOMS, dated the 22nd July, 2003.
In the notification, in the paragraph 2, for the figures, letters and words "15th day of August, 2003", the figures, letters and words" 15th day of October, 2003" has been substituted.
Notification No. 128/2003 Dated 14.08.2003 and No. 126/2003 Dated 13.08.2003 : The following notifications have been rescinded by the government of India.
Notification No. 1/2003-Customs, dated the 1st January, 2003
Notification, No. 25/2003-Customs, dated the 13th February, 2003
Notification No. 127/2003 Dated 14.08.2003 and No. 125/2003 Dated 13.08.2003 : Anti Dumping Duty has been imposed on the import of the following items from the countries specified.
Induction Hardened Forged Rolls
Non-brass metal flashlights
Circular No. 71/2003 Dated 07.08.2003 : It has been brought to the notice of the Board that some importers are importing complete CD mechanism "as parts" by mis-declaring the same as 'pick up unit' or 'lens unit' so as to take undue benefit of concessional duty under notification no. 25/99-Cus dated 28.2.99. Under notification no. 25/99, list A, serial no. 115, parts of CD deck mechanism imported for manufacturing CD deck mechanism are eligible for concessional rate of customs duty @ 5%. Therefore the concerned authorities have been requested that due caution may be exercised in examination and valuation of goods declared to be "parts" of CD mechanism.
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Service Tax
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Notification No. 17/2003-(NT) Dated 23.07.2003 : Central Government has made the Service Tax (Advance Rulings) Rules, 2003 to be effective from 23.07.2003 specifying Form and manner of application for obtaining advance ruling.
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RBI
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Circular No. A.P. (DIR Series) Circular No.9 Dated 18.08.2003 : On a review of the position and against the background of extant "Know Your Customer" Guidelines, it is decided to enhance the limit of USD 25000 prescribed in paragraph A10.1(i) referred to above to USD 100,000 (USD one hundred thousand) for all imports made into India. Consequently, authorised dealers should ensure rigorous follow-up for non-submission of documentary evidence, as prescribed in paragraph A.11(i) of the Annexure to A.P (DIR Series) Circular No.106 dated June 19, 2003, for import of remittances exceeding USD 100,000.
Circular No. A.P. (DIR Series) Circular No.7 Dated 12.08.2003 : It has been clarified that remittances may be allowed for the purposes detailed in A.P. (DIR Series) Circular No.3 dated July 17,
2003, based on self certification of the purposes, as also other basic details of the transaction, while ensuring that the payment for purchase of the foreign exchange by the applicant, is by means of cheque or demand draft or by debit to his account. It is further clarified that the onus of furnishing the correct details in the application, will remain with the applicant who has certified the details relating to the purpose of such remittance.
Notification No. DBOD.No.Leg. BC.9 / 09.05.001/2003-04 Dated 14.08.2003 : With reference to circular DBOD.No.Leg.BC.84/C-672 /86 dated August 8, 1986 advising all commercial banks to declare one day in a week as Non-Public Business Working Day (NPBWD) for their rural branches i.e on that day no public transactions should be handled but instead it should be fruitfully used for contacting the present and potential clientele for development work like mobilization of deposits, monitoring credit utilization, recovery and providing appropriate guidance to borrowers, it has been decided that the above scheme of Non-Public Business Working Day (NPBWD) be made optional for the banks leaving it to individual bank's management to decide on the observance of NPBWD based on the local conditions.
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DGFT
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Circular No. 13 (RE-2003)/2002-2007 Dated 18.08.2003 : It has been clarified that it is not the intention of the Policy Circular No.8 dt. 20th June, 2003 to call for data from each and every exporter of a particular product and the intention is only in getting representative data. Export Promotion Councils can forward data related to 60-65% of total exports under a particular DEPB entry and also they should get themselves satisfied that the data forwarded is representative.
Circular No. 4/2003 Dated 31.07.2003 : It has been decided that no further abeyance should be granted against refusal memos issued against any VABAL Licences and action should be completed on priority basis by all sections. Monitoring of all pending VABAL cases shall be completed within one month and a comprehensive report to this effect should be submitted to Zonal JDG at the end of one month.
Trade Notice No. 04 / 2002-2007 Dated 22.07.2003 :
All exporters availing DEPB @15% or more are
advised to submit data in the prescribed format along with documentary evidence
in accordance with the Policy Circular No.8 (RE-2003)/2002-2007 dated 20th
June, 2003, to their respective Export Promotion Council for onward submission
to DGFT. In case of failure to submit the data for review of DEPB for any
product, DEPB rate for such product will be reduced to 5%.
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Department of Commerce
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Notification No. 14/10/2003-DGAD Dated 05.08.2003 : Anti Dumping Investigations
Concerning Import of Gypsum Plaster Board Originating in or Exported from Indonesia and Thailand, have been initiated
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Department of
Legal Affairs
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Notification No. SO903(E) Dated 05.08.2003 : For clause (a), the following clause has been substituted, namely:-
'(a) "service voter" means any person specified in clause (a) or clause (b) of section 60, but does not include "classified service voter" defined in rule 27M;'.
3. In rule 23 of the said rules, in sub-rule (5), in clause (a), for the words "seal up in a packet", the words, figures and letter "subject to the provisions of rule 27P, seal up in a packet" has been substituted.
4. After Part III A of the said rules, Part III B has been inserted.
5. Form 13F and 13G have been inserted.
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Ministry of Labour |
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Order No. SO904(E) Dated 04.08.2003 : Central Government in exercise of the powers conferred by Section 7B of the Industrial Disputes Act, 1947 (14 of 1947) has constituted a National Industrial Tribunal with headquarters at Mumbai and appoints Justice S. C.
Pandey, Presiding Officer, Central Government Industrial Tribunal-Cum-Labour Court, (No. I), Mumbai as the Presiding Officer and in exercise of the powers conferred by Sub-section (I-A) of Section 10 of the said Act has referred the industrial dispute between the management of Major Ports and their workmen represented by five Labour Federations of Port and Dock Workers to the National Industrial Tribunal. The said Tribunal shall give its award within a period of six months.
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Ministry of Railways
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Notification No. GSR646(E) Dated 08.08.2003 : Central Government has made the Railway Passengers (Manner of Investigation of Untoward Incidents) Rules, 2003 to be effective from 08.08.2003.
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Ministry of Road |
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Notification No. GSR645(E) and No. GSR644(E) Dated 08.08.2003 : The draft of the following have been published for any objections from the public.
National Highways Tribunal (Procedure for Appointment as Presiding Officer of the Tribunal) Rules, 2003
National Highways Tribunal (Procedure for Investigation of Misbehavior or Incapacity of Presiding Officer) Rules, 2003 |
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Press Information Bureau |
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Dated 07.08.2003 : Shri Arun Jaitley, Union Minister for Commerce & Industry and Law & Justice, has said that India has taken effective anti-dumping measures to safeguard the interests of domestic industry in the post-QR era. To this end, the anti-dumping investigation process in the country has been greatly streamlined.
Dated 06.08.2003 : The Free Trade Agreement (FTA) being presently negotiated between India and Thailand, which is at the final stage of drafting, will give a big boost to further growth in bilateral trade, investment and services. It would also facilitate duty-free access to each other's markets and result in enhanced trade and investment opportunities. This was stated by Shri Arun Jaitley, Union Minister of commerce and Industry at an interactive meeting with Deputy Prime Minister of Thailand Dr. Korn Dabbransi, and his delegation, organised by the Federation of Indian Chambers of Commerce & Industry (FICCI).
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Supreme Court |
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The petition was filed to
clarify the doubts and anomalies associated with the interpretation of
the T.M.A. PAI’s judgment. The Apex court has herein answered various
questions related to the admission of students, fees, operation &
Management of Private Unaided Professional Colleges.
As regards the fee, the Hon'ble
Supreme court held that there can be no fixing of a rigid fee structure
by the Government and each institute will have freedom to fix its own
fee structure. An institution cannot charge profiteering and Capitation
fees but it can generate surplus, which must be used for the betterment
and growth of the institution and cannot be diverted for any other
purpose or personal gain or any other business or enterprise. To keep a
check thereon, a Committee shall be appointed by the State Government,
which will decide whether the fees proposed by that institute are
justified. Educational Institutions cannot charge fees in advance and
if an advance fee is so charged, the institution can use the fees of
the semester/year and the balance fees shall be invested in fixed
deposits to be used as and when it falls due.
The Hon'ble Supreme court was
of the view that the Minority and Non-Minority Educational Institutions
do not stand on the same footing. Article 30 of the Constitution
provides extended protection and advantages to the Minorities run
Institutions over the Non-Minority Educational Institutions.
The Hon'ble Supreme court also
made distinction between Private Unaided Professional Colleges and
other Non-Professional Educational Institutions. In Professional
Colleges, both Minority and non-Minority, merit shall be the criteria
for admission. However the Management can reserve certain percentage of
seats for admission. Minority Professional Colleges can admit, in their
Management Quota, a student of their own community/language in
preference to a student of another community even though that other
student is more meritorious but inter-se merit amongst students of
their community/language cannot be ignored.
The Hon'ble Supreme court
further held that Students under Management Quota could be selected on
the basis of the Common Entrance Tests conducted either by the State or
by an association of all Colleges of a particular type in that State.
To ensure that the tests conducted by the association of Colleges are
fair and transparent, a permanent Committee will be appointed by the
State Government.
The Hon'ble Apex court further
clarified that for the year 2003-2004, since the outer time limit for
admission is fast approaching, the institution and the State Government
shall fill up the seats in the ratio of 50:50. With these
clarifications Hon'ble Supreme court directed that all the matters be
placed before the regular benches for disposal on merits and all
Interlocutory Applications as regard interim matters stand disposed in
above terms.
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