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Legislative and Regulatory Update
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[No.61]
September 10, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
A Maine manufacturer/retailer
that conducted a large percentage of its business via the Internet had
sufficient contacts with California to permit exercise of general personal
jurisdiction in that state. The retailer had no official agent in California,
was not authorized to do business there, and paid no taxes there. Nevertheless,
it conducted extensive marketing and sales in California and had extensive and
ongoing contacts with local vendors, and its highly interactive, very extensive
website was clearly and deliberately structured to operate as a sophisticated
virtual store in the state. The website generated millions of dollars in sales
from California, and by itself was sufficient to confer jurisdiction.
Gator.Com Corp. v. L.L.
Bean, Inc.
An order centralizing two
patent actions in one district was appropriate. Both of the actions involved the
same two complex patents, which related to methods for preventing or filtering
unsolicited electronic mail messages. The actions thus could be expected to
share factual and legal questions concerning such matters as patent validity,
prior art, obviousness and interpretation of various claims of the patents.
In re Mailblocks, Inc.,
Patent Litigation
A competitor, who registered a
chemical injection valve manufacturer's trademark as an Internet domain name in
order to force the manufacturer to remove the competitor's mark metatags from
the manufacturer's website, had the "bad faith intent" needed to
establish the manufacturer's cybersquatting claim. The competitor registered the
domain name to improve its bargaining position in a commercial dispute, and used
it to attract potential customers to its website.
Flow Control Industries
Inc. v. AMHI Inc.
A money transmitting company
failed to allege that banks that closed the company's accounts, after learning
that the company was in money transmitting business, was the result of the
banks' conspiracy to restrain trade or an attempted monopolization under either
the anti-conspiracy or anti-monopoly provisions of the Sherman Act. The company
opened bank accounts with the banks, allegedly without disclosing that it was in
the money transmitting business. The banks closed the company's accounts with
notice of the intention to do so after observing significant volume of
transactions passing through the company's accounts, and out of concern that the
company was not in compliance with federal anti-money laundering laws. The
company failed to identify the relevant product or geographic market or show any
evidence that the banks' actions were done in furtherance of a conspiracy or
through an attempt to monopolize the market. The company also failed to allege a
viable refusal to deal claim under the Clayton Act.
L & J Crew Station,
LLC v. Banco Popular de Puerto Rico
The Kentucky Court of Appeals
held that the issue of whether a restaurant owner had a duty to warn about the
health risks of eating raw oysters precluded entry of summary judgment for a
restaurant owner in an action brought by a customer and his wife for injuries
the customer allegedly suffered as a result of eating raw oysters. Although the
Vibrio vulnificus bacterium, commonly found in oysters, presented little risk to
healthy persons, the bacterium posed a slight, but real, risk of serious illness
or death, to persons with stomach, liver, or blood conditions, or with
compromised immune systems. The Court of Appeals held that a jury could find
that the risk posed by the bacterium was substantial enough to cause a
reasonable oyster producer to warn against it.
Edwards v. Hop Si, Inc.
The taxpayer's failure to
timely protest the appraisal district's alleged lack of notice of the appraised
value of the aircraft precluded the taxpayer from obtaining judicial review of
the appraisal district's tax assessment for the aircraft. The protest procedure
set forth in the statute entitling a property owner to protest the lack of
notice was the taxpayer's exclusive remedy for contesting the appraisal
district's failure to provide it with the notice of the appraised value. Since
the taxpayer's notice of the protest was not filed prior to the date the taxes
would have become delinquent as required by the statute, the taxpayer forfeited
its right to a final determination of its protest.
Denton Central Appraisal
Dist. v. CIT Leasing Corp.
News
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U.S. District Court Judge
Robert Sweet has dismissed a class action suit by two Bronx teenagers, who
alleged that deceptive advertising by McDonald's about their food, unknown
ingredients and processing used made them fat and contributed to their
health problems. The judge said "The plaintiffs have made no explicit
allegations that they witnessed any particular deceptive advertisement, and
they have not provided McDonald's with enough information to determine
whether its products are the cause of the alleged injuries."
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European Commission has
adopted new rules which make it mandatory for the cosmetics makers to put a
warning symbol showing the "use by" date on products which have a
shelf life longer than 30 months, starting in 2005.A spoke person for
European Commission said in a statement that the new symbol will give
consumers "a greater assurance that they have bought a safe product,
plus a guarantee of its quality."
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Collins Stewart Tullett PLC,
a brokerage firm has filed a laws suit against The Financial Times,
contending that some articles published by the paper on the basis of
accusations made by a former employee, late last month were defamatory and
inaccurate. The firm is seeking damages equal to the loss in its market
capitalization since the paper published the first of these stories - an
amount equal to about 128 million pounds ($202 million). While a spoke
person for The Financial Times said "We stand by our story. We believe
there was public interest in reporting those allegations in a balanced
way." and intended to fight the case brought the firm and
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South Australian Supreme
Court jury in Adelaide have held two men John Justin Bunting,37 and Robert
Joe Wagner, 31, guilty of 11 and 7 murders respectively in the so-called
"bodies-in-barrels" case. Two men have been sentenced to life
imprisonment for their roles in one of Australia's most gruesome serial
killings.
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In order to hear and
resolve the of election fund-raising case, the U.S. Supreme Court will
return a month early from their traditional summer recess. The justices have
shown a keen interest in the issue and their desire to resolve it before
presidential and congressional election in 2004.
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On September 5th, Hong Kong
government withdrew anti-subversion bill, which had sparked the biggest
political crisis, when the people had taken to streets to protest against
the proposed legislation, which according to the critics was threat to
freedom. Chief Executive Tung Chee-hwa in a news briefing said "The
community still has concerns about the content of the bill. To give the
public more time to understand the bill, we have decided to withdraw
it,"
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United States became the
30th and the final nation to ratify the 1999 Montreal Convention after it
finalized a treaty that removes ceiling on damages in lawsuits brought
against airlines by families of people who are killed or hurt in accidents
while on international flights. The final papers were submitted to
International Civil Aviation Organization on September 5th. Now passengers
who were hurt in accidents or the families of those killed could claim and
collect up to $139,000 from the airline regardless of fault, up from a
maximum of $75,000. Amount of damages could increase if it is determined the
airline was negligent.
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SEBI
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Secondary Market Division
Notification No. SO991(E) Dated 28.08.2003 : The Exchange had sought the approval of SEBI for waiver of prior publication of the proposed amendments to bye-law no. 228(3), in the official gazette in order to implement SEBI's circular no. SMD/POLICY/Cir-6/03 dated February 12, 2003 and the request received from the exchange has been considered and SEBI is of the opinion
that the above amendment should be made immediately for effective implementation of T+2 rolling settlement in the
Exchange. Therefore, SEBI has dispensed with the condition of previous publication of the bye-law as approved earlier.
Notification No. SO989(E) Dated 28.08.2003 : Securities and Exchange Board of India, has granted renewal of recognition to the Exchange for a further period of one year commencing on the 23rd day of August, 2003 and ending on the 22nd day of August, 2004, in respect of contracts in Securities subject to the conditions specified.
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Department of Revenue
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Notification No. SO986(E) Dated 28.08.2003 : Central Government has authorised the persons specified to function as adjudicating officers to adjudicate the cases of contravention of any of the provisions of the Foreign Exchange Regulation Act, 1973 [other than section 13, clause (a) of section 18, sub-clause (a) of sub-section (1) of section 19] or any rule or direction or order made thereunder, such cases as may be assigned by the Directorate of Enforcement.
Notification No. SO964(E) Dated 25.08.2003 : Central Government has appointed the officers of enforcement as specified.
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CBDT
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Notification No. 206/2003 Dated 27.08.2003 : Central Board of Direct Taxes, has directed that Chief Commissioners of Income-tax specified in column (2) of the Schedule II shall exercise all the powers and perform all the functions under the Income-tax Act 1961 for the period beginning on or after 1st July 2003 in respect of persons who made applications for permanent account number on or after 1st July, 2003 or who make such applications after such date and who are otherwise assessable by the Income-tax Authorities specified in column (4) of that Schedule.
Notification No. 205/2003 Dated 26.08.2003 : The CBDT has issued the Scheme for electronic filing of return of tax deducted at source. It specifies the following
Preparation of e-TDS Return
Furnishing of e-TDS Return
Procedure to be followed by e-TDS intermediary
General responsibilities of e-TDS Intermediary
Powers of e-filing Administrator
Powers of the Board
Notification No. 204/2003 Dated 26.08.2003 : (i) In Part VI for rule 37B new rule relating to Returns regarding tax deducted at source on computer media under sub-section (2) of section 206,
has been substituted.
(ii) In Appendix II Form No. 27A has been substituted.
Notification No. 203/2003 Dated 26.08.2003 : Rule 16DD relating to Form of particulars to be furnished along with return of income for claiming deduction under clause (b) of sub-section (1B) of Section 10A, has been inserted. In Appendix II Form No. 56FF, has been inserted.
Notification No. 202/2003 Dated 22.08.2003 : Prajapita Brahma Kumaries Ishwariya Vishwa Vidyalaya, Rajasthan, has been notified u/s 10(23C)(iv) of the Income Tax Act, 1961.
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CBEC Excise Tariff
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Notification No. 70/2003 Dated 04.09.2003 : In the said notification, in the Table, S. No. 51 relating to Mosquito net fabrics has been inserted.
Circular No. 741/57/2003-CX Dated 02.09.2003 : It has been clarified that Board's circular dated 11.8.2003 granting self-sealing and self-certification facility to all manufacturer-exporters shall not be applicable to exports to Nepal and Bhutan since such exports are governed by the specific procedure
as prescribed.
Circular No. 740/56/2003-CX Dated 29.08.2003 : The salient features of the exemption scheme specified in Notification No. 69-CE dated 25th August, 2003 provides that the
concession will apply only to those units who had set up their plants in pursuance to the New Industrial Policy and other concessions for North East, 1997 and continued their operations despite withdrawal of the exemption on 01.03.2001. It will not apply to units, which came up after 01.03.2001, when the exemption was withdrawn. The concession will apply to all tobacco products (excluding cigarettes, smoking mixtures for pipes and cigarettes, cut tobacco and biris).
Circular No. 742/58/2003-CX Dated 03.09.2003 : Taking into account the peculiarities of service tax law, book keeping practices of service providers and the experiences gained during the course of auditing of selected service tax categories, it is felt necessary to prepare a comprehensive Service Tax Audit Manual following internationally recognized audit methodology to provide guidelines to the departmental officers to facilitate auditing of Service Tax-payers and to ensure uniformity. Accordingly, Director- General (Audit) has prepared and issued a comprehensive Service Tax Audit Manual. The manual is for use of the departmental officers, which may be carefully studied.
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CBEC Customs Tariff
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Notification No. 139/2003 Dated 05.09.2003 : Anti Dumping Duty has been Imposed On Plastic Opthalmic Lenses imported From China PR And Taiwan
Notification No. 138/2003 Dated 05.09.2003 : In the said notification, in the Table,-
(i) against S.No.191, the entries in columns (2) to (6) have been omitted;
(ii) against S. No. 196, the entries in columns (2) to (6) have been omitted.
Circular No. 81/2003 Dated 05.09.2003 : It is clarified that certification charges paid by the exporter to the certifying agencies shall not be considered to be additional value for the purpose of this notification and diamond re-imported after certification by the specified agencies abroad shall be eligible for duty free import provided other conditions of notification No. 55/2001-Customs, dated 16-3-2001 are fulfilled.
Circular No. 80/2003 Dated 05.09.2003 : It has been decided that, the provision contained at Point No.4 of the Annexure to Board's Circular No.128/95-Cus., dated 14.12.1995 may be substituted as under:-
(4) "Insurance of all goods held in ICD/CFS, except those goods which have already been insured by the exporters/importers, shall be made by the custodian."
Circular No. 79/2003 Dated 04.09.2003 : Considering that the existing provision of furnishing of Bond/BG on Central Excise side also provide for furnishing of bond without surety in the case of status holders and manufacturer exporters, it is clarified that in respect of category of importers specified in paras 2(a) to (d) of DOR Circular No.74/2003-Cus. dated 21.8.2003 (including public sector undertakings), a bond without surety shall be accepted for the purpose of permitting import of goods under Advance License/EPCG Schemes.
Notification No. 137/2003 Dated 03.09.2003 : In the Table, after S. No. 6 and the entries relating thereto, S. No. 7 and 8 relating to Clay Birds and Ammunition cartridges, respectively have been inserted.
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CBEC Customs Non Tariff
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Notification No.69/2003-N.T. Dated 29.08.2003 : In the notification the Table has been substituted.
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Department of Economic Affairs
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Notification No. GSR696(E) Dated 28.08.2003 : Rule 8 has been amended
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RBI
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Circular No. A.P. (DIR Series) Circular No.13 Dated 01.09.2003 : As part of the measures for further liberalisation, it has been decided that :-
i. A registered Foreign Institutional Investor (FII) having valid approval under FERA, 1973 or under FEMA, 1999 may trade in all exchange traded derivative contracts approved by SEBI from time to time subject to the limits prescribed by SEBI.
ii. A Non-Resident Indian (NRI) may invest in exchange traded derivative contracts approved by SEBI from time to time out of INR funds held in India on non-repatriable basis subject to the limits prescribed by SEBI. Such investments will however not be eligible for repatriation benefits.
Notification No. DBS.FID No. C-5 / 01.02.00/2002-03 Dated 01.08.2003 : With reference to
Circular DBS.FID No. C-7 / 01.02.00/2002-03 dated September 2, 2002 forwarding the draft guidelines for Consolidated Accounting and Consolidated Supervision of the FIs and in the light of the comments received, and the views expressed at the meeting held with the select FIs on December 20, 2002, the guidelines have been reviewed. The guidelines would be implemented with effect from the year commencing from April 1, 2003 (July 1, 2003 in case of National Housing Bank - NHB).
Notification No. DBOD No. BP.BC.20 /21.01.002/2003-04 Dated 02.09.2003 : The Master Circular No. DBOD. BP. BC. 2/ 21.01.002/ 2002- 2003 dated July 5, 2002 consolidating instructions/ guidelines issued to banks till 30 June 2002 on matters relating to prudential norms on capital adequacy, has been suitably updated by incorporating instructions issued upto 30 June 2003
Notification No. DBOD No. BP.BC.21 /21.04.141/2003-04 Dated 02.09.2003 : The Master Circular No.DBOD.BP.BC.3/21.04.141/2002-03 dated July 11, 2002 consolidating instructions / guidelines issued to banks till June 30, 2002 on matters relating to prudential norms for classification, valuation and operation of investment portfolio by banks, has been suitably updated by incorporating instructions issued upto June 30, 2003.
Dated 05.09.2003 : It is proposed to revise the content and structure of the OSS returns with the objective of reducing the volume of data required to be reported by the banks, while increasing the breadth and depth of information being obtained from UCBs by the department. Under the proposed system, the number of off-site surveillance returns required to be submitted by banks have been reduced from 10 to 8. Out of the eight returns, the periodicity of one return is annual and the rest seven would have to be submitted at quarterly intervals. Comments are invited on the eight OSS returns
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DGFT
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Circular No. 14(RE-2003)/2002-2007 Dated 29.08.03 : It has been clarified that the actual users of crude palm stearin may obtain permission from the Directorate of Vanaspati, Vegetable Oil and Fats as and when they want to process crude palm stearin in their other plants so as to utilise their unutilised capacity.
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Department of Commerce
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Notification No. 14/18/2002-DGAD Dated 27.08.2003 and No. 14/29/2002-DGAD Dated 25.08.2003 : Termination of Anti Dumping Investigation has been made Concerning Imports of Hot Rolled Coils, Sheets, Plates and Strips Originating in or Exported From South Africa, Romania, Venezuela, Saudi Arabia, European Union, Australia, Canada, and Singapore and Final Findings regarding Anti-Dumping Investigation Concerning Import of Para Cresol Originating in or Exported from People's Republic of China,
have been published.
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Department of Consumer Affairs |
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Order No. GSR681(E)/Ess.Com./Sugar Dated 25.08.2003 : In Sugar (Price Determination for 2002-2003 Production) Order, 2003, schedule I, II and III have been substituted
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Ministry of Health
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Notification No. GSR658(E) Dated 26.08.2003 : Central Government, has proposed to make Prevention of Food Adulteration (…………………..Amendment) Rules, 2003, the draft of which has been published for the information of all persons likely to be affected thereby, and notice has been given that the said draft rules will be taken into consideration on or after the expiry of a period of thirty days from the date on which copies of the Gazette of India in which this notification is published are made available to the public.
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Ministry of Information and
Broadcasting
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Notification No. SO1000(E) Dated 29.08.2003 : In the said notification, item (ii) and entries thereto have been deleted.
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Ministry of Labour
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Notification No. SO997(E) Dated 29.08.2003 : Central Government has added the following item to the First Schedule to the said Act after Serial No. 28, namely:
"29 Processing or Production of Fuel Gases (Coal Gas, Natural Gas and the like)"
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Press Information Bureau |
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Dated 01.09.2003 : The Government has decided to further postpone the date of coming into effect of the amendments made to section 206C relating to tax collection at source by sellers of country liquor, Indian made foreign liquor, scrap and timber.
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Ordinance |
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Ordinance
2 of 2003 Dated 08.09.2003 : As
Parliament is not in session and the President is satisfied that
circumstances exist which render it necessary for him to take immediate
action, the President has promulgated the Taxation Laws (Amendment)
Ordinance, 2003
to amend Income-tax Act, 1961, the Wealth-tax Act, 1957 and the
Expenditure-tax Act, 1987. The ordinance had the effect of slashing the
interest rates from eight to six percent on refunds under all the
above Acts and fifteen to twelve percent on overdues under the Income
Tax Act. A new section 10BA has been inserted in the Income Tax Act,
1961, providing 100 percent deduction of the profits derived from export
of wood-based handicraft items. Ship breaking has been included in the
exempted category for the purpose of section 10(15)(iv) in respect of
interest payable outside India.
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Supreme Court |
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A petition
under Article 32 of the Constitution of India was filed to bring forth the
matters connected to the safety and environmental aspects of Tehri Dam before
Hon'ble Supreme Court. It was urged in the petition to, firstly, issue
necessary directions to conduct further safety tests so as to ensure the safety
of the dam. Secondly, that the concerned authorities have not correspondingly
complied with the conditions attached to the Environmental Clearance and wanted
to halt the Project till the same is complied with. Lastly, it was prayed to the
Court to look into the Rehabilitation aspects.
On the safety aspect of the dam
it was held by the Apex Court that all additional safeguards are required to be
undertaken on the 'precautionary principle' as contained in 'the RIO Declaration
on Environment and Development' taken in the United 'Nation conference held in
January 1992 to which India is a party. On the issue of Rehabilitation it was
held that the oustees of Tehri Dam Project who are used to valley life in
Himalayas will be resettled and rehabilitated in newly built Tehri Town and
those depending on forest and agriculture will be given cash compensation or
land down-stream near Dehradun city.
The Apex Court further held that the Central
Government shall constitute a Committee for the purpose of investigating,
ascertaining and reporting whether the pari passu condition laid
down in the environment clearance of the Project have been fulfilled or not by
the authorities of the Project.
Further
Court directed that there will be no impoundment of the Reservoir until
resettlement and rehabilitation work is fully completed in all respects. Further
the Court held that an effective Grievance Redressal Cell should be set up by
the State Government for solving rehabilitation and resettlement problems of the
oustees of the Project, which shall submit its status report every three months
to the Expert Committee.
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