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[No.62]
September 20, 2003 |
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International Legal News
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Cases
Source:
Westlawinternational.com
A pop-up advertisement appearing in a separate window on a individual's
computer, obstructing a trademark holder's advertisement, was not a "use in
commerce" of the holder's trademarks, as required to support claims for
trademark infringement, unfair competition, and trademark dilution. The pop-up
ads appeared on a window that was separate and distinct from the window in which
holder's website appeared. The creator of the scheme did not advertise or
promote the holder's trademarks through the use of the holder's uniform resource
locator (URL) or trademark in its directory. Finally, the pop-up scheme did not
interfere with the use of holder's web site by its customers and dealers.
U-Haul Intern., Inc. v. WhenU.com, Inc.
The design of cockpit doors in Boeing 757 jets was a proximate cause of the
terrorism-related crash of two of the jets on Sept. 11, 2001. The terrorists'
unauthorized entry into the cockpit of the aircraft was not unforeseeable, and
did not constitute an "intervening" or "superseding" cause
that could break the chain of causation
In re September 11 Litigation
A motion picture producer's alleged failure to credit the film's narrator and
director did not constitute reverse passing off under the Lanham Act. The
"origin of goods," which had to be correctly labeled under the Act,
referred to the producer of the tangible goods that were offered for sale, and
not to a provider of services embodied in those goods.
Williams v. UMG Recordings, Inc.
Personal e-mails are not "made or received pursuant to law or ordinance or
in connection with the transaction of official business" and, therefore, do
not fall within the definition of public records that are subject to disclosure
by virtue of their placement on a government-owned computer system. Just as an
agency cannot circumvent the Public Records Act by allowing a private entity to
maintain physical custody of documents that fall within the definition of
"public records," private documents cannot be deemed public records
solely by virtue of their placement on an agency-owned computer. The determining
factor is the nature of the record, not its physical location.
This decision may not yet be released for publication.
State v. City of Clearwater
The Islamic Republic of Iran was not immune, under the Foreign Sovereign
Immunities Act (FSIA), from liability to victims and families of victims of the
1983 bombing of the United States Embassy in Beirut, Lebanon. A District of
Columbia district court found Iran liable and awarded damages of up to
$12,000,000 to various individuals. However, the district court concluded that
punitive damages were not available against Iran's Ministry of Intelligence and
Security (MOIS), since the MOIS performed governmental, not commercial,
functions. In making the latter conclusion, the district court disagreed with
another District of Columbia district court judge.
Dammarell v. Islamic Republic of Iran
News
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In Fahy v. Horn, Senior U.S. District Judge
Norma L. Shapiro has overturned the death sentence of Henry Fahy, a Philadelphia
man convicted of raping and murdering a 12-year-old neighbor in 1981, after
finding that the jury instructions and verdict slip used during the death
penalty phase of his trial were confusing. In her opinion the federal
judge relied on Banks v. horn, where in the 3rd U.S. Circuit Court of
Appeals had overturned the death sentence of George Banks who was convicted of
13 murders because jury used faulty instructions. Shapiro further held that the
instructions and verdict form might have led some jurors to believe that they
had to agree unanimously on any "mitigating" circumstance before they
could vote against the death sentence.
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Judge David N. Hurd of the 2nd U.S. Circuit
Court of Appeals, has ruled in Lewis v. Gagne that juvenile delinquents
detained by New York state are covered by the federal Prison Litigation Reform Act. This
means that youths with a complaint about their treatment in a state facility
must exhaust administrative remedies before they will be allowed in court.This
determination is consistent with rulings from the 4th U.S. Circuit Court of
Appeals, the U.S. Court of Appeals for the D.C. Circuit and the Northern
District of Illinois.
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AOL Time Warner has decided to remove AOL from its
name and will start trading its stock under its old "TWX" symbol in
the New York Stock Exchange, instead of "AOL." The company was formed
in 2001 when America Online, the leading Internet company, purchased Time
Warner, owner of Time magazine, CNN, and Warner Bros., and promised to transform
the media industry. Such a decision is a sign of the failure of the company's
attempt to unite old and new media.
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David Smith, sender of virus Melissa which did
more than $80 million damage in 1999 has been working with FBI to track hackers
from around the world. After reading the letter written by New Jersey's U.S.
Attorney, Christopher J. Christie in April 2002, the federal judge Joseph
Greenaway reduced Smith's sentence to 20 months. Under federal sentencing
guidelines Smith could have been sentenced for 10 years.
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The Illinois Supreme Court has agreed to hear Philip Morris' appeal of a $10.1 billion verdict in a class-action lawsuit claiming the company misled smokers about the dangers of light
cigarettes. The case was the first consumer class-action lawsuit over light
cigarettes to go to trial.
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SEBI
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Secondary Market Division
Notification No. SO1062(E) Dated 15.09.2003 : SEBI has granted renewal of recognition to the Exchange for a further period of one year commencing on the 18th day of September, 2003 and ending on the 17th day of September, 2004, in respect of contracts in securities subject to the conditions specified.
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CBDT
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Notification No. 220/2003 Dated 12.09.2003 : 1. Rule 19AC relating to Form of certificate to be furnished under sub-section (3) of section 80QQB has been inserted.
2. Rule 29A relating to Form of certificate to be furnished along with the return of income under sub-section (4) of Section 80QQB, Sections 80R, 80RR and 80RRA, and sub-section (3) of Section 80RRB and the prescribed authority for the purposes of sub-section (4) of section 80QQB and sub-section (3) of Section 80RRB, has been substituted.
3. Form No. 10CCD that is the Certificate under sub-section (3) of section 80QQB for Authors of certain books in receipt of Royalty income, etc., has been inserted.
Notification No. 219/2003 Dated 12.09.2003 : M/s Idea Cellular Ltd. (Formerly Birla AT&T Communications Ltd.) Approved u/s 10(23G)
Notification No. 218/2003 Dated 12.09.2003 : M/s National Institute of Rock Mechanics approved u/s 35(1)(ii)
Notification No. 217/2003 Dated 12.09.2003 : M/s Jaiprakash Hydro Power Limited Approved u/s 10(23G)
Notification No. 216/2003 Dated 09.09.2003 : "Grocery Markets and Shops Board, Mumbai" Notified u/s 10(23C)(iv)
Notification No. 215/2003 Dated 09.09.2003 : "Grocery Markets and Shops Board, Mumbai" Notified u/s 10(23C)(iv)
Notification No. 214/2003 Dated 05.09.2003 : Indian Institute of Public Administration Approved u/s 35(1)(iii)
Notification No. 212/2003 Dated 04.09.2003 : "Vanamamalai Mutt Nanguneri, Tamil
Nadu" notified u/s 80G(2)(b)
Notification No. 211/2003 Dated 04.09.2003 : "Govind Bhawan Karyala,
Kolkata" notified u/s 10(23C)(iv)
Notification No. 210/2003 Dated 04.09.2003 : "The Dohnavur, Fellowship, Dohnavur, Tirunelveli
Distt., Tamilnadu" notified u/s 10(23C)(iv)
Notification No. 208/2003 Dated 01.09.2003 : "Institute of Rail Transport (Regd.), New Delhi"notified u/s 10(23C)(iv)
Notification No. 207/2003 Dated 01.09.2003 : "India International Rural Cultural Centre, New Delhi" Notified u/s 10(23C)(iv)
Circular No. 6/2003 Dated 03.09.2003 : It has been represented to the Board that the requirement of Tax Deduction at Source under Section 194H should not be applicable in respect of Turnover Commission payable by the Reserve Bank of India to the Agency Banks (Banks authorized for conducting Government business) for performing the general banking business of the Central and State Governments on behalf of
R.B.I.
The matter was considered in the Board and it has been decided that Tax would not be required to be deduced by RBI on the amount of Turnover Commission paid or credited by it.
Order Dated 08.09.2003 : Central Board of Direct Taxes, has extended the last date of filing of all TDS returns in respect of previous year 2002-2003 to 30th NOVEMBER, 2003.
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CBEC Excise Tariff
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Hon'ble Supreme Court Judgment Dated 31.01.2003, In The Case Of Collector Of Customs, Bombay Vs M/S Elephanta Oil And Industries Ltd., Bombay
Circular No. 745/61/2003-CX Dated 16.09.2003 : The Supreme Court in the above judgment
clarified that Section 112 of the Customs Act, 1962 requires imposition of penalty and Section 125 provides for confiscation of improperly imported
goods, hence both the sections operate in different fields. Section 111 provides that goods brought from the place outside India are liable to confiscation if the goods are improperly imported as provided therein. In cases where goods are liable to confiscation, discretion is given to the authority to impose penalty. Further, section 125 empowers confiscation of such goods and thereafter, confiscated goods vest in the Central Government. The Section further empowers the authority to give an option to the owner or the person from which goods are seized to pay fine in lieu of such confiscation for return of the goods and the fine is also limited up to the market price of the goods. Therefore, levy of fine in lieu of confiscation is in addition to levy of penalty imposable under Section 112 and so the decision was in favour of revenue.
Circular No. 744/60/2003-CX Dated 11.09.2003 : Vide Circular No. 518/14/2000-CX dated 03.03.2000, it was informed that on the advice of the Ministry of Law, appeal has been filed by the Department in the Supreme Court against the CEGAT Southern bench judgment vide Final Order No. 1786/99 dated 21.07.1999, on the above issue. In this regard it
is informed that the appeal filed by the Department has been dismissed by the Hon'ble Supreme Court vide their judgment dated 06.08.2003.
Circular No. 743/59/2003-CX Dated 11.09.2003 : The Board's Circular No. 707/23/2003-CX dated April 16, 2003 regarding availing of ad-hoc exemption duty by Institutions/Organizations under Central Excise Act, has been partially modified by replacing para 1(b) of the Circular words as mentioned `concerned district authorities' by words `jurisdictional Commissioner of Central Excise'.
Notification No. 71/2003 Dated 09.09.2003 : Central Governement has exempted the goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986), other than goods specified and cleared from a unit located in the Industrial Growth Centre or Industrial Infrastructure Development Centre or Export Promotion Industrial Park or Industrial Estate or Industrial Area or Commercial Estate or Scheme Area, as the case may be, in the State of
Sikkim, from so much of the duty of excise or additional duty of excise, as the case may be, leviable thereon under any of the said Acts as is equivalent to the amount of duty paid by the manufacturer of the said goods, other than the amount of duty paid by utilization of CENVAT credit under the CENVAT Credit Rules, 2002.
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CBEC Excise Non Tariff
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Notification No. 73/2003 NT Dated 15.09.2003 : Central Board of Excise and Customs has specified the form for the quarterly return for the registered dealers for the purposes of rule 7 of CENVAT Credit Rules,2002.
Notification No. 72/2003 NT Dated 15.09.2003 : Central Board of Excise and Customs has specified
form E.R.-2 for monthly return in respect of excisable goods manufactured and receipt of inputs and capital goods, for the purposes of the rule 17(3) of the Central Excise Rules, 2002.
Notification No. 71/2003 NT Dated 15.09.2003 : Central Board of Excise and Customs has specified the following forms ,
(i) for monthly return for production and removal of goods and other relevant particulars and CENVAT credit, Form
E.R.-1 has been specified
(ii) for quarterly return for clearance of goods and CENVAT credit, Form E.R.-3 has been specified.
Notification No. 70/2003 NT Dated 15.09.2003 : Amendments have been made in Rule 3, 4 and 7 and Form-1 and Form-2 have been omitted.
Notification No. 69/2003 NT Dated 15.09.2003 : In rule 17 of the said rules, for sub-rule (3), the following sub-rule has been substituted , namely,-
"(3) The unit shall submit a monthly return, in the form specified, by notification, by the Board, to the Superintendent of Central Excise, within ten days from the close of the month to which the return relates, in respect of excisable goods manufactured in, and receipt of inputs and capital goods in, the unit.".
Notification No. 68/2003 NT Dated 12.09.2003 : Central Government has fixed the rate of interest at Fifteen percent per annum for the purpose of Section 11DD of Central Excise Act, 1944.
Notification No. 67/2003 NT Dated 12.09.2003 :
Central Government has fixed the rate of interest at six percent per annum for the purposes of the Section 11BB of Central Excise Act, 1944
Notification No. 66/2003 NT Dated 12.09.2003 : Central Government has fixed the rate of interest at thirteen percent per annum for the purpose of section 11AB of the Central Excise Act, 1944
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CBEC Customs Tariff
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Notification No. 140/2003 Dated 10.09.2003 : In the said notification, in condition (6), in the proviso, the words letters & figures "where the duty saved is not less than Rs.100 crores and "
have been deleted.
Circular No. 82/2003 Dated 09.09.2003 : It has been decided that in respect of garment exports to Russia made by the specified 63 Indian exporters during the year 2001 under non-quota entitlement, pending drawback benefits may be granted on merits after ascertaining -
(i) that the goods were physically exported;
(ii) export proceeds have been duly realized from the country where they have been exported; and
(iii) drawback benefits are otherwise admissible as per law.
As regards all other imports/exports made by aforesaid 63 Indian exporters including current import/export consignments of garments and all other items, so long as the requirement of duty drawback scheme and other export promotion schemes are met and the goods are exported/imported as per law, the imports/exports may continue to be allowed as hitherto.
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Department of Economic Affairs
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Notification No. GSR731(E) Dated 05.09.2003 : In the Foreign Exchange Management (Current Account Transactions) Rules, 2000, in Schedule III,--
(a) in item Numbers 5, 6 and 7, for the word and figure "US $ 5000" the word and figure "US $ 100,000" has been substituted;
(b) in item Number 10 for the word and figure "US $ 30,000" the word and figure "US $ 100,000" has been substituted; and
(c) in item Number 15 for the word and figure "US $ 100,000" the word and figure "US $ 1,000,000" has been substituted;
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RBI
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Circular No. A.P. (DIR Series) Circular No.14 Dated 16.09.2003 : It has been decided in consultation with the Government, to derecognise Overseas Corporate Bodies (OCBs) in India as an eligible 'class of investor' under various routes/schemes available under extant Foreign Exchange Management Regulations. This decision is a follow up of the review of investment activities of OCBs in India, carried out by Reserve Bank on the basis of the recommendations of the Joint Parliamentary Committee on Security Market Scam.
Notification No. DBOD. No. Dir. BC. 26/13.01.09/2003-04 Dated 15.09.2003 : The amending directive DBOD. No. Dir. BC.25/13.01.09/2003-04 dated September 15, 2003 specifies that the LIBOR / SWAP rates as on the last working day of the preceding month would form the base for fixing ceiling rates for the interest rates that would be offered effective from the following month. The other instructions contained in the Master Circular DBOD. No. Dir. BC. 11/13.03.00/2003-04 dated August 14, 2003 as amended from time to time shall remain unchanged.
Notification No. DBOD. No. Dir. BC. 25/13.01.09/2003-04 Dated 15.09.2003 : RBI has directed that, until further notice, the interest rates on fresh repatriable NRE deposits for one to three years contracted effective close of business in India on September 15, 2003 should not exceed 100 basis points (instead of 250 basis points announced on July 17, 2003) above the LIBOR/SWAP rates for US dollar of corresponding maturity.
Notification No. DBOD No. BP.BC.24 /21.04.018/2003-04 Dated 13.09.2003 : It has been observed that banks follow divergent practices in respect of accounting of legal expenses incurred in case of suit filed accounts. The issue was examined in consultation with Institute of Chartered Accountants of India and it has been decided that banks should adopt the guidelines as specified for accounting legal expenses in suit filed accounts.
Notification No. DBOD No. BL.BC.23 /22.01.001/2003 Dated 11.09.2003 : Based on requests received from banks, it has been decided to allow banks which are registered with SEBI as Depository Participants to provide the facility of Depository Services to its customers at Extension Counters.
Notification No. DNBS.175/CGM(OPA)-2003 Dated 17.09.2003 : (i) Paragraph 9A has been renumbered as 9A(1);
(ii) In paragraph 9A, so re-numbered, after sub-paragraph (1), sub-paragraph (2) has been added, as follows, -
"(2) On and from September 18, 2003, no non-banking financial company shall invite or accept or renew repatriable deposits from Non-Resident Indians in terms of Notification No.FEMA.5/2000-RB dated May 03, 2000 under Non-Resident (External) Account Scheme at a rate exceeding the rate specified by the Reserve Bank of India for such deposits with scheduled commercial banks.
Explanation
The period of above deposits shall be not less than one year and not more than three years."
Notification No. DNBS.174/CGM(OPA)-2003 Dated 17.09.2003 : In paragraph 4, after sub-paragraph (7), sub-paragraph (7A) shall be added, namely -
"(7A) On and from September 18, 2003, no non-banking financial company shall invite or accept or renew repatriable deposits from Non-Resident Indians in terms of Notification No.FEMA.5/2000-RB dated May 03, 2000 under Non-Resident (External) Account Scheme at a rate exceeding the rate specified by the Reserve Bank of India for such deposits with scheduled commercial banks.
Explanation
The period of above deposits shall be not less than one year and not more than three years."
Notification No. DNBS. (PD). CC. No. 30 /02.01/2003-04 Dated 17.09.2003 : It has been decided that, keeping in view the prevailing interest rates on fresh repatriable deposits accepted from non resident Indians in the entire financial system, the rate of interest which the Non Banking Financial Companies can pay on such deposits should also be the same as is payable by the scheduled commercial banks on these deposits. It may be recalled that the scheduled commercial banks can pay interest on these deposits contracted in India for one to three years from the close of business on September 15, 2003 shall not exceed 100 basis points above the LIBOR/SWAP rates for US dollar of the corresponding maturity on fresh rapatriable NRE deposits.
Circular No. MPD.BC.238/07.01.279/2003-04 Dated 15.09.2003 : It has been decided that, until further notice, the interest rates on fresh repatriable NRE deposits for one to three years on September 15, 2003 should not exceed 100 basis points (instead of 250 basis points announced on July 17, 2003) above the
LIBOR/SWAP rates for US dollar of corresponding maturity. The maturity period of repatriable NRE deposits would continue to be one to three years, and the interest rate as determined above for three year deposits would also be applicable in case the maturity period exceeds three years.
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DGFT
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ALC Circular No. 02/2003-2004 Dated 05.09.2003 : It has been decided with the approval of Director General of Foreign Trade that the Regional Licensing Authorities may in the case of liquor decide on merits, as in the case of other licences under para 4.7 of HBP Vol. 1, as per the Exim Policy and Procedure.
Public Notice No. 24/2002-07 Dated 10.09.2003 : Director General of Foreign Trade hereby makes the following addition / correction / amendment in the book titled " Schedule of DEPB Rates".
Public Notice No. 23/2002-07 Dated 10.09.2003 : Director General of Foreign Trade has made amendments/deletions/corrections and additions in the Handbook of Procedures, Vol.2, 2002-2007, as amended.
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Department of Commerce
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Notification No. 14/10/2002-DGAD Dated 04.09.2003 : The Designated Authority has made, clarifications in the Final Findings notified vide Notification No. 14/10/2002/DGAD dated 4th August, 2003.
Notification No. 15/4/2003-DGAD Dated 03.09.2003 : Sunset Review Regarding Anti-Dumping Duty Imposed on Acrylic Fibre Originating n or Exported from Japan, Spain, Portugal and Italy has been initiated.
Notification No. 14/10/2003-DGAD Dated 02.09.2003 : Anti-Dumping Investigations Concerning Import of Gypsum Plaster Board from Indonesia and Thailand, have been terminated.
Notification No. 14/31/2002-DGAD Dated 01.09.2003 : Final Findings regarding Anti-dumping Investigation Concerning Import of Measuring Tapes Originating in or Exported from China PR, have been published.
Notification No. 14/18/2002-DGAD Dated 27.08.2003 : Anti-Dumping Investigations regarding 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, have been terminated.
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Department of Post
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Notification No. GSR705(E) Dated 04.09.2003 : Rule 10-C regarding Bill Mail Service, has been inserted.
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Department of Consumer Affairs |
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Notification No. GSR702(E) Dated 02.09.2003 : Central Government, has fixed the price specified as the minimum price that shall be payable by the owners of the vacuum pan process sugar factory specified in the corresponding entry in column (3) of the said Schedule or their agents for sugarcane delivered at the gate of the factory or any purchasing centre for the sugar year 2002-2003 ending the 30th September, 2003 subject to the rebates payable therefor under Clause 3A of the said Order.
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Ministry of Environment
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Notification No. SO996(E) Dated 27.08.2003 : (a) In rule 2, in clause (h), in sub-clause (i), for the words "treating or any ozone depleting substance", the words "treating of any ozone depleting substance" have been substituted;
(b) In rule 13, after sub-rule (7), sub rule (8) and (9), have been inserted.
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Ministry of Information of Broadcasting |
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Notification No. GSR715(E) Dated 08.09.2003 : 1. Rule 12 regarding Responsibility of cable operators in certain cases, has been substituted.
2. Rule 14 regarding Manner of making provisions for rent, security deposit, etc. for Set Top Boxes, has been substituted.
Notification No. SO1027(E) Dated 05.09.2003 : In the said notification, item (ii) and entries thereto have been deleted. |
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Press Information Bureau |
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Dated 17.09.2003 : The Government has constituted the 17th Law Commission of India with Shri Justice M. Jagannadha Rao, a retired Judge of the Supreme Court of India as Chairman.
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Supreme Court |
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Writ Petitions were
filed in public interest on the ground that the method adopted by the
Government in exercising its executive powers to disinvest HPCL and
BPCL without repealing or amending the acquisition law was not
permissible.
Hon’ble Supreme
Court held that when the provisions of the Act provide for vesting of
the property of the undertaking in the Government or a Government
company, it cannot mean that it enables the same being held by any
other person, particularly in the context that the object of the Act is
that the ownership and control of the petroleum products is distributed
and marketed in India by the State or Government company and that
thereby so distributed as best to subserve the common good.
The Apex Court was of
the view that in the light of the statute of acquisition, the character
of a government company cannot be changed to an ordinary company
without Parliamentary clearance. - Petition Allowed.
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