Legislative and Regulatory Update
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In This Issue [No.64] October 10, 2003
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MAURITIUS BASED FIIs JUDGMENT Read it on
Free access to the most recent Supreme Court Judgments
Cases
Source: Westlawinternational.com
Civil Rights: Newspaper's right to publish matters of public record - Certiorari Denied.
The freedoms of speech and press protected a newspaper from being held civilly liable to an individual on the theory of invasion of privacy by public disclosure of embarrassing private facts, the Idaho Supreme Court previously held in a case in which the United States Supreme Court has now denied certiorari. The newspaper accurately published a photographic reproduction of a third party's nearly 40-year-old statement implicating the individual in homosexual activity. The individual claimed that there was no significance in having his name appear in the story, which concerned a scandal and a criminal investigation that occurred approximately 40 years earlier. However, at the time of publication, the statement was contained in a court record open to the public.
In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), the United States Supreme Court addressed the issue of whether, consistently with the First and Fourteenth Amendments, a state may grant a cause of action for invasion of privacy caused by the publication of information obtained from a court record. The Cox Broadcasting Court concluded that the protection of freedom of the press barred the state from making a reporter's broadcast of the name of a rape victim a basis for civil liability. The factors upon which the Court based its decision in Cox Broadcasting also weighed in favor of upholding the granting of summary judgment in this case, the Idaho Supreme Court reasoned.
In his petition for a writ of certiorari, the individual questioned whether, under the First and Fourteenth Amendments, the privilege of the press to publish matters of public record is absolute. He also asked whether the newsworthiness doctrine is applicable to the press's privilege to publish the public record, in situations of obvious, extreme violation of privacy, in which no public interest in the particular disclosure exists, when the disclosure is readily separable or redactable from the publication, and when the press has knowledge or scienter of these factors.
Uranga v. Federated Publications, Inc.
Trademarks: Professional football team's "Redskins" trademarks were not shown to be disparaging.
The Trademark Trial and Appeal Board's finding that a professional football team's "Redskins" marks "may disparage" Native Americans, warranting registration cancellation, was not supported by substantial evidence. There was no evidence that a substantial composite of Native Americans viewed the marks as disparaging when used to identify a professional football team during the relevant time period.
Pro-Football, Inc. v. Harjo
Energy and Utilities: Order finding FTC's telemarketing sales regulations invalid was stayed pending appeal.
The Federal Trade Commission was entitled to a stay pending a decision on the merits of its appeal from a district court order enjoining the application of telemarketing sales regulations that the court had determined to be unconstitutional. The government's/public's interests in preventing abusive sales practices and protecting privacy outweighed the harm to telemarketers if a stay was granted, and the FTC was likely to prevail on the merits of the appeal.
F.T.C. v. Mainstream Marketing Services, Inc.
Family Law: Unwed father could withhold consent to adoption of child, even though mother was minor.
An 18-year-old unwed father was not disqualified by the unlawfulness of his voluntary sexual relationship with the child's 16-year-old mother from asserting his federal constitutional right, under the due process and equal protection clauses, to withhold consent to a third party adoption of his child. Language in a footnote in Adoption of Kelsey S., which precluded assertion of this constitutional right by a father who engaged in "nonconsensual sexual intercourse" with the mother, referred to forcible rape, not unlawful sexual intercourse in a case such as this, where the parents were relatively close in age and they willingly participated in the sexual act. In addition, even though this child's conception was in violation of the statute prohibiting unlawful sexual intercourse with a minor, this father was not convicted of that violation, and the mother was not 15 and this father was under 21, so that he was not statutorily precluded from attempting to demonstrate a responsible commitment to this child.
In re Kyle F.
News
Coca-Cola Co., Atlanta-based soft drink giant has settled a law suit filed by a former employee for deceptive marketing and accounting practices. Matthew Whitley, a former finance director, had alleged that he had lost his job earlier this year after he had informed the management about metal shavings getting into the frozen soft drinks and $65 million marketing fraud committed in order to get Burger King to become a Coke customer. The soft drink giant has agreed to pay $540,000 to Matthew Whitley.
10th U.S. Circuit Court of Appeals in Denver have temporarily stayed the decision of the lower court which had prohibited Federal Trade Commission to enforce the popular anti-telemarketing program. The national do-not-call list will resume its work of accepting phone numbers from people who do not want to be bothered by telemarketers. The circuit court of appeals still has to decide the issue whether rights of free speech of telemarketers are violated, by the do-not-call list . In the mean while a fine up to $11,000 can be charged if the telemarketer calls a number in the list.
Federal Judge Scott O. Wright, Jefferson City, Missouri will issue a temporary restraining order to enforce a new law, which requires women seeking an abortion to wait 24 hours after consulting a physician. The statute provides that a doctor, violating the provisions of the statute can face a years imprisonment or fine up to $1000. It is alleged that every time a doctor performs an abortion, he can be subjected to prosecution. The decision to restrain the enforcement of the statute, was taken after consultation with state attorneys and planned parenthood affiliates who had challenged the law on grounds of vagueness of the statute. Restraining order will remain in effect till 27th January, the next date of hearing.
Lawyers for Lee Boyd Malvo,18 accused in the famous sniper case said that their client will use insanity as a defense at his trial in November. Attorney Craig Cooley said Malvo was "indoctrinated" by John Allen Muhammad, 42. Both Malvo and Muhammad are suspected of killing 10 people and wounding 3 others in Virginia, Maryland and Washington, D.C., last fall.
Canadian Courts have allowed individuals and business to grow and sell medical marijuana. In July, Canada became the first country in the world to sell government grown marijuana to seriously ill people unlike united States which has imposed a ban on medical marijuana. This ruling will make it easier for sick people to get marijuana by allowing them better access and more choice.
2nd U.S. Circuit Court of Appeals have vacated the decision of district court which had imposed $18,000 sanction on two New York lawyers in a cyber squatting dispute. The court held that the district judge had abused its discretion and lawyers Scott E. Mollen and John P. Sheridan of Herrick Feinstein had acted in good faith in pursuing a cyber squatter in arbitration after Southern District Judge Denny Chin had dismissed their client's earlier court action with prejudice with the understanding the dispute had been settled.
Secondary Market Division
Format of Risk Disclosure Document
Circular No. SEBI/MRD/SE/Cir-37/2003 Dated 30.09.2003 : A model format of the Risk Disclosure Document detailing the basic risks involved in trading on a stock exchange, the rights and obligations of the clients, etc., has been issued. Based on these clauses the respective stock exchanges should prepare their own Risk Disclosure Document. The exchanges may, however, prescribe any additional clauses as may be considered necessary by them.
The stock exchanges are advised to inform their member brokers/clearing members that they are required to bring the contents of the said document to the notice of their clients and make them aware of the significance of the document. The members would also be required to obtain a copy of the Risk Disclosure Document duly signed by their clients.
Secondary Market for Corporate Debt Securities
Circular No. SEBI/MRD/SE/AT/36/2003/30/09 Dated 30.09.2003 : Companies have been issuing debt securities on private placement basis from time to time. In order to provide greater transparency to such issuances and to protect the interest of investors in such securities, it has been decided that any listed company making issue of debt securities on a private placement basis and listed on a stock exchange shall be required to comply with certain instructions issued in this behalf.
Listing Of Further Issue Of Capital
Circular No. SEBI/MRD/Policy/Cir-35/2003/29/09 Dated 29.09.2003 : The Government of India vide circular No.F.No.1/9/SE/2003 dated April 23, 2003 has, inter alia, withdrawn the requirement relating to compulsory listing by companies on regional stock exchange. Keeping in view the letter and spirit of the said circular, it has been decided that if a company is listed on any stock exchange which is having nationwide trading terminals, it would be a sufficient compliance of the aforesaid SEBI circular, if it obtains 'in-principle' approval from such stock exchange(s) for further issue of shares or securities. Where the company is not so listed on any stock exchange having nationwide trading terminals, it shall continue to obtain 'in-principle' approval from all the exchanges where it is listed as was provided in the aforesaid Circular dated March 08, 2001. The Stock Exchanges have been directed to amend the listing agreements to that effect.
Unique Client Code
Circular No. SEBI/MRD/SE/Cir-34/2003/29/09 Dated 29.09.2003 : SEBI Circular No.SMDRP/Policy/CIR-39/2001 dated July 18, 2001 mandated that the brokers would be required to furnish the particulars of their clients to the stock exchanges/clearing corporations and the same would be updated every quarter. It is felt that the systems for furnishing and recording such client details have now stabilized and that the period for updating such codes should now be shortened. It has, therefore, been decided to call for such details as prescribed in the aforesaid circular on a monthly basis. Such information for a specific month should reach the exchange within 7 working days of the following month. The stock exchanges shall follow up with the members to ensure that all of them comply with the requirement and take necessary action in case of non-compliance. The stock exchanges have been directed to amend their listing agreements accordingly.
Mutual Funds
Investment Limits For Government Guaranteed Debt Securities
Circular No. SEBI/IMD/CIR No. 8/18944/03 Dated 06.10.2003 : Clause 1 and 1A of Schedule VII of SEBI (Mutual Fund) Regulations, 1996 contain prudential investment norms stipulating limits on investments in debt securities issued by a single issuer.
It is clarified that the aforesaid investment limits are applicable to all debt securities which are issued by public bodies/institutions such as electricity boards, municipal corporations, state transport corporations etc guaranteed by either state or central government. Government securities issued by central/state government or on its behalf by the RBI are exempt from the above referred investment limits.
Amendment to Notification No. G.S.R. 555(E) Dated 26th July, 2001
Notification No. GSR775(E) Dated 29.09.2003 : In the said notification, in paragraph 1, in clause (f), in sub-clause (i), for item (B), the following item has been substituted, namely ;--
"(B) offer interest on fixed and recurring deposits not exceeding the maximum rate of interest prescribed by the Reserve Bank of India that the Non Banking Financial Companies can pay on their public deposits,".
Corrigendum to Notification No. S. O. 715(E), Dated 19th June, 2003
Notification No. S.O. 1098(E) Dated 24.09.2003 :
(a) in serial number ( 1 ) for "( i )", "( l )" should be read
(b) in serial numbers (1) and (24) for "clause", "clauses" should be read.
Income-Tax (21st Amendment) Rules, 2003
Notification No. 226/2003 Dated 25.09.2003 : (a) in part IV, in rule 18-BBA, after sub-rule (2), the following sub-rule has been inserted, namely:-
"(2A) The certificate from the undertaking in the Special Economic Zone which is required to be furnished under proviso to sub-section (4) of section 80HHC by an undertaking referred to in sub-section (4C) of that section shall be in form No. 10CCABA
(b) in the Appendix-II, after the Form No. 10CCAB, Form No. 10CCAB relating to Certificate to be issued by an undertaking in the Special Economic Zone, has been inserted.
Income-Tax (20th Amendment) Rules, 2003
Notification No. 225/2003 Dated 25.09.2003 : 1. Rule 11A, relating to Certificate to be obtained from the medical authority for the purposes of deduction under section 80DD and section 80U, has been substituted.
2. Rule 11D has been omitted.
Amendment to Notification No. S.O. 733(E) Dated 31st July, 2001
Notification No. 224/2003 Dated 25.09.2003 : 1. In Schedule I to the notification number S.O: 733(E) dated the 31st July, 2001, serial numbers 1, 12, 24, 32, 39, 44, 49, 51, 55, 57, 69, 73, 76, 78, 81 and 85, have been substituted.
2. In the Schedule I to the notification number S.O. 734(E) dated 31st July, 2001, serial numbers 1 to 14 and the entries relating thereto, have been substituted.
Review of Power of Adjudication under Section 33 and Section 11A of the Central Excise Act, 1944
Circular No. 752/68/2003-CX Dated 01.10.2003 : The Board has decided to prescribe the uniform monetary limit to different categories of officers for the purpose of deciding the competence of adjudication of cases without differentiating whether or not cases involve fraud, collusion, any wilful mis-statement, suppression of facts or contravention of Central Excise Act/ Rules with an intent to evade duty and/ or where extended period has been invoked. It has also been decided by the Board to enhance the monetary limit of the amount of duty involved from the present level for different categories of officers for adjudication cases.
Utilisation Of Credit Of AED (GSI) Towards Payment Of CENVAT Duty
Circular No. 751/67/2003-CX Dated 30.09.2003 : It has been referred to Law Ministry for their opinion whether credit of AED (GSI) accrued prior to 1.3.2003 can be availed of and used for the payment of CENVAT duty as well as AED (GSI) on or after 1.3.2003. Accordingly, it is advised that necessary action to protect the revenue may be taken notwithstanding anything contained in the Board's circular No. 700/16/2003-CX dated 6th March, 2003 on this issue. In this connection, TRU has already issued instruction vide letter F.No. 354/95/2003-TRU dated 10th September, 2003 which may also be referred to.
Award of Interest by the Tribunal
Circular No. 750/66/2003-CX Dated 26.09.2003 : In some cases of refund of pre-deposits, Tribunal has in the past ordered for payment of interest also by the Department despite their being no specific provision in the Statute. In some such cases, appeals have been filed before the Hon'ble Supreme Court. It is possible that in some similar cases Reference Applications / Appeals may have been filed by the Commissionerates before the jurisdictional High Courts and some similar cases may also be coming up for hearing before the Tribunal. It has been therefore, requested that whenever any such case involving claim for interest comes up for hearing before the Tribunal or the Courts, where there is no specific provision in the law for payment of interest, the judgment of the Tribunal in M/s. Akai Impex Ltd. vs. Commissioner of Customs, Mumbai, may be cited to defend the case of the Department.
Removal Of Difficulties Regarding Duty Drawback Under Rules 6 And 7 Of The Customs And Central Excise Duties Drawback Rules, 1995
Circular No. 89/2003 Dated 06.10.2003 : It has been clarified that duty drawback scheme is aimed at neutralising the input stage duties of Customs and Central Excise suffered in respect of various inputs used in the manufacture of the export products.
Apart from duty drawback, exporters also have other schemes for claiming the relief of input stage duties of Central Excise through rebate under Rule 18 of the Central Excise Rules, 2002 or Cenvat Facility under the Cenvat Credit Rules, 2002. It is clarified that if the input stage duties have been rebated through the instrumentality of any of these schemes, then simultaneous relief under Drawback scheme shall not be admissible. The field formations, therefore, should ensure that the Central Excise allocation of the duty drawback rate can be permitted only if the exporters furnish the evidence that they are not availing.
Facility For Permitting Imports Against Telegraphic Release Advice (TRA) Under DFCEC, DFCEC And EPCG Scheme
Circular No. 88/2003 Dated 06.10.2003 : It has been decided that in respect of imports against Duty Free Credit Entitlement Certificate (DFCEC) Scheme for Status Holders, Duty Free Credit Entitlement Certificate (DFCEC) Scheme for Service Providers, & EPCG Scheme import of goods shall be permitted against TRA from any of the places which are notified in the three notification Nos.53/03, 54/03 and 55/03 respectively. TRA shall be issued in terms of instructions contained in the earlier DOR Circular No.67/2003-Cus. dated 28.7.2003 after verifying the genuineness of the certificate/licence by the Custom House at the port of registration.
Movement Of Domestic Courier Bags On Domestic Segments Of International Flights
Circular No. 87/2003 Dated 06.10.2003 : It has been decided to allow the movement of domestic courier bags on domestic sector of international flights of all the airlines subject to certain conditions.
Anti Dumping Duty Notifications
Notification No. 146/2003 Dated 06.10.2003 Anti Dumping Duty has been Imposed On Para Cresol From China PR
Notification No. 145/2003 Dated 06.10.2003 Anti Dumping Duty has been Imposed On Vitamin E Acetate From China PR
Notification No. 143/2003 Dated 01.10.2003 Anti Dumping Duty has been Imposed On Acylic Alcohols From Brazil, Malaysia, Romania, Singapore And South Africa
Amendment to Notification No. 77/2000-CUSTOMS, Dated the 26th May, 2000
Notification No. 144/2003 Dated 06.10.2003 : In the said notification, after the TABLE, the following paragraph has been inserted, namely:-
" 2. This notification shall be in force upto and inclusive of the 7th day of April, 2004, unless the notification is revoked earlier."
Effective Date Of Payment Of Government Dues By Cheques & Drafts
Circular No. 86/2003 Dated 03.10.2003 : It has been decided that in view of specific provisions in the Central Excise and Service Tax Laws , the Circular No. 28/2002, dated 24.5.2002, will not apply to payments of Central Excise duties and Service Tax. In other words in respect of Central Excise duty & Service Tax , the date of payment will be the date of presentation of the cheque in the bank subject to realisation of the cheque.
Valuation Of Goods For Central Excise Purpose - Cum Duty Price
Circular No. 749/65/2003-CX Dated 26.09.2003 : It has been decided that Bills of entry filed for home consumption prior to 1.8.2003, should be assessed on the basis of test reports of samples drawn by the Port Health Officer (PHO). If the reports mention the item as 'crude palm oil/palmolein' or as 'palm oil/palmolein which needs further processing', the report should be accepted and assessment finalized accordingly. If the test reports indicate the item as RBD palm oil/palmolein, the assessment should be finalized under sub-heading 15119010.
Hon'ble Supreme Court Order in Case of Commissioner of Customs Kolkata Vs M/s Grand Prime Ltd. & Ors.
Circular No. 748/64/2003-CX Dated 24.09.2003 : It has been decided that the valuation of marble ,i.e , rough or raw marble blocks, rough marble slabs, polished marble blocks, should be considered on merits as per the provisions of the Customs Valuation (Determination of Price of Imported Goods) Rules, 1988. Where necessary , the data available with the Directorate of Valuation could be considered for guidance.
Appointment of Commissioner of Customs (Appeals), Mumbai-II to Act as Commissioner of Customs(Appeals), Mumbai-I for Deciding Appeals
Notification No. 83/2003-N.T. Dated 07.10.2003 : Central Board of Excise and Customs has appointed the Commissioner of Customs (Appeals), Mumbai-II, as Commissioner of Customs (Appeals), Mumbai-I, for the purpose of deciding the appeals filed before the Commissioner of Customs (Appeals), Mumbai-I on and from the 1st January, 1999 to 31st December, 2001.
Import Of Gold Against Letter Of Authority Issued By Nominated Agency
Circular No. A.P. (DIR Series) Circular No.25 Dated 01.10.2003 : Under the Government's Nominated Agency Scheme for import of gold, MMTC/ HHEC, STC & PEC, designated as nominated agency by Government and banks permitted by RBI are authorised to import gold for supply to exporters with an export obligation imposed thereon. Authorised Dealers have been advised that Letters of Credit for import of gold under the Nominated Agency Scheme must be established only on behalf of the Nominated Agency themselves and under no circumstances should the Letter of Credit be issued on behalf of any other entity even if a letter of authority issued by the Nominated Agency is furnished by these entities.
Borrowing From Close Relatives Abroad
Circular No. A.P. (DIR Series) Circular No.24 Dated 27.09.2003 : With a view to further liberalising and simplifying the existing regulations, specified in Notification No.FEMA 3/2000-RB dated May 3, 2000, Reserve Bank has issued Notification No.FEMA 75/2002-RB dated November 1, 2002. Accordingly, an individual resident may borrow a sum not exceeding USD 2,50,000 or its equivalent from close relatives residing outside India, subject to certain conditions.
Extension of Validity Period For Special Financial Package For Large Value Exports
Notification No. IECD No. 2/04.02.01/2003-04 Dated 07.10.2003 : Circular IECD.No.8/04.02.01/2002-03 dated September 28, 2002 issued by RBI has extended the Special Financial Package upto September 30, 2003. It has been decided to further extend the validity period of the Financial Package upto September 30, 2004. As regards interest rates, the instructions contained in our circular IECD.No.18/04.02.01/2002-03 dated April 30, 2003, continue to apply.
Amendment In The Hand Book Of Procedure Vol. I
Public Notice No. 26(RE-2003)/2002-07 Dated 30.09.2003 : The DGFT has made the following amendment in the Handbook of Procedures :
Paragraph 5.3, 5.3.1 and 5.3.2
In the list of "Documents to be enclosed with the application form" of Appendix 9
Import Of Second Hand Personal Computers (PCs)/Laptops - Clarification
Circular No. 16(RE-03)/2002-2007 Dated 29.09.2003 : It has been clarified that second hand personal computers (PCs)/Laptops are covered under the definition of "second hand goods" and their import is governed by the provisions of Para 2.17 of EXIM Policy,2002-07 and not covered under the definition of "capital goods" as defined under Para 9.10 of EXIM Policy and Para 2.33 of Hand Book of Procedures (Vol.I). In view of this, second hand personal computers (PCs)/Laptops can also not to be permitted for import under EPCG scheme under the provisions of para 5.1 of the Exim Policy, even for service providers.
Initiation of Anti-Dumping Investigations
Notification No. 14/15/2003-DGAD Dated 22.09.2003 : Anti Dumping Investigations have been initiated Concerning Import of 6-Hexanelactam from Japan, European Union, Nigeria and Thailand in India.
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