Legislative and Regulatory Update
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In This Issue [No.71] December 20, 2003
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Free access to the most recent Supreme Court Judgments
Cases
Source: Westlawinternational.com
Criminal Justice: John Hinckley was entitled to highly structured, limited conditional release from mental hospital.
John Hinckley, the man who attempted to assassinate President Ronald Reagan, was entitled to a highly structured, limited conditional release from a mental hospital under his parents' supervision. Hinckley had shown no signs of delusional or psychotic behavior in at least 10 years. There was some evidence of continuing deceptive behavior, but it was unlikely he would relapse within a 48-hour period. The mental health experts all agreed that there was a low risk of danger to Hinckley or others.
U.S. v. Hinckley
Jurisdiction: Forum selection clause was enforceable and venue would not be transferred out of that forum.
A lawsuit against an Internet service provider could not be venued in Connecticut, rather than in Virginia as specified in the service contract's forum selection clause, although a Virginia court could not compel the attendance of hostile, out of state, non-party witnesses. The existence of potential third party defendants or witnesses not subject to the court's jurisdiction was not dispositive, there was no evidence that the provider chose Virginia in bad faith or in an effort to discourage meritorious suits, the Virginia court could address any Connecticut state law issues, and the provider's greater financial resources alone could not override the forum selection clause.
Freedman America Online, Inc.
Health: Patient was entitled to cross-examine surgeon's expert regarding substantial connection to surgeon's malpractice carrier.
A patient was entitled to cross-examine a surgeon's medical expert regarding his substantial connection to the surgeon's malpractice insurer for the purposes of demonstrating the witness's interest in the outcome of the malpractice action. The Supreme Court adopted the "substantial connection" test used by other jurisdictions to determine whether a witness's connection to the defendant's insurer is sufficient to fall outside the rule excluding such evidence as unduly prejudicial to the defendant. The fact that the witness is a policyholder of the defendant's insurer does not constitute a substantial connection to the insurer; however in this case, the expert's connection to the surgeon's insurer was substantial enough to warrant the admission of such evidence, in that the expert was a member of the insurer's business development committee for two years and had been appointed to the board of directors, and therefore had a statutory duty to act in the insurer's best interest.
Vasquez v. Rocco
Litigation: Consolidation of six actions arising from September 11, 2001, terrorist attacks was warranted.
The consolidation and centralization for pretrial proceedings of six actions in multidistrict litigation against alleged promoters, financers, sponsors, and supporters of the September 11, 2001, terrorist attacks was warranted. All of the actions presented common, complex legal and factual questions. Moreover, centralization was necessary to eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel, and the judiciary.
In re Terrorist Attacks on September 11, 2001
News
U.S. District Judge Paul Friedman, on Wednesday granted John Hinckley Jr, the man who tried to assassinate President Ronald Reagan in 1981 to unsupervised visits with his parents. The judge allowed Hinckley to have six one day visits with his parents within a 50-mile radius of Washington, D.C., without an escort from St. Elizabeth's Hospital. However a request for overnight visits or to his parents house has been denied. Hinckley Jr had shot President Reagen in order to impress actress Jodie Foster, who had been a student at Yale University at that time and had been found not guilt by reason of insanity.
A Trade Mark infringement suit has been filed by Chicago's Billy Goat restaurants for infringement of its popular slogan 'Cheezborger, cheezborger' against Florida's Cheeburger Cheeburger restaurant chain. In the suit Billy Goat asserts that "the public associates the trademark 'Cheezborger, cheezborger' with the Billy Goat restaurants." The slogan became popular through a popular 1970s "Saturday Night" Live skit, in which he portrays a heavily Greek-accented waiter and yells orders for "cheezborger, cheezborger[s]" at a restaurant chef. However Cheeburger Cheeburger's attorney claims that Cheeburger Cheeburger has two federal trademark registrations for its name, where as Billy Goat owns none.
Charles Cullen, a former nurse in the State of New Jersey has been charged for a murder and attempting to murder two patients. As the investigation regarding Charles Cullen proceed the number of people killed by him over his 16 years career increases. Charles Cullen claims to have killed as many as 40 patients. In a brief court appearance Cullen said "I am going to plead guilty. I don't plan to fight this " and has voluntarily surrendered his nurse's license. Prosecutor Wayne Forrest, Somerset County, New Jersey said that Cullen, asserted that his motive was to alleviate pain and suffering in these cases.
The members of privy council review committee,U.K. of the Anti terror bill 2001 said that measure against terrorism are needed, however Section 4 of the Anti-terrorism, Crime and Security Act 2001 - which allows indefinite detention - should be replaced with a measure that "does not require the UK to derogate from the right to liberty under the European Convention on Human Rights".
Gary Leon Ridgway nicked name as 'Green River Killer' was sentenced to by King County Superior Court Judge Richard Jones to 48 life terms and fined him $10,000 for each victim. Gary Leon had been charged of murder of 48 women and has been the most prolific murderer in U.S history. Judge Jones began his speech by observing silence for 48 seconds for each women murdered by him and went on to say "As you spend the balance of your life in that tiny cell, surrounded only by your thoughts, please know the women you killed were not throwaways -- pieces of candy in a dish placed upon this planet for the sole purpose of satisfying the murderer's desires."
Secondary Market Division
Information from Depository Participants (DPs) Regarding Processing of Applications for Dematerialisation
Circular No. SEBI/MRD/DEP/Cir- 44 /2003 Dated 12.12.2003 : As the required information is available with the Depositories, it has been decided that henceforth, the DPs need not have to furnish the information in the prescribed format regarding processing of applications for dematerialization on weekly basis to SEBI.
Minimum Number of Investors in Schemes/Plans of Mutual Funds
Circular No IMD/PMS/CIR/10/22701/03 Dated 12.12.2003 : To avoid the instances wherein individual/a few investors were holding substantial portion of units in schemes/plans of mutual funds and also keeping in view the interest of investors, SEBI had initiated a dialogue with the industry including AMFI. Taking into account the inputs received, the guidelines have been issued regarding Minimum Number of Investors in Schemes/Plans of Mutual Funds and the reporting of the same.
Foreign Institutional Investor
Two-Way Fungibility of ADRs/GDRs
Circular No. IMD/CUST/11/2003 Dated 11.12.2003 : It has been decided to revise the format, for submitting monthly report to RBI/SEBI in terms of clause q) of the Operative Guidelines on the two-way fungibility under the issue of "Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme 1993 ", particularly the column nos. 10 and 12 . This monthly report shall include transactions upto and inclusive of the last Friday of the month and shall be submitted by the custodians both in hard copy as well as soft copy by the 10th of the following month. This revision has become effective from the monthly report pertaining to December 2003 onwards .
Clarification Regarding Compliance Certificate
Circular No. 35/2003 Dated 11.12.2003 : Keeping in view the Proviso to section 383A (1) of the Companies Act, 1956, it is clarified in consultation with the Department of Legal Affairs that a company which is not required under law to employ a whole-time secretary, but has nevertheless employed a whole-time Company Secretary within the meaning of section 2(1)(c) of the Company Secretaries Act, 1980, such a company is not required to obtain compliance certificate from Company Secretary in practice. In other words, no company employing a full time Company Secretary is required to also obtain a compliance certificate from a Company Secretary in practice.
Unlisted Companies (Issue of Sweat Equity Shares) Rules, 2003
Notification No GSR923(E) Dated 04.12.2003 : The Central Government has issued the Unlisted Companies (Issue of Sweat Equity Shares) Rules, 2003 to be effective from their date of publication i.e. 04.12.2003.
Default in Monthly Payment of Duty- Action to Recover the Dues
Circular No. 766/82/2003-CX Dated 15.12.2003 : Having regard to the matter of default in payment of amount of duty outstanding and the interest payable even after the completion of one month period from the due date, it has been clarified that after the completion of one month paid from the due date, the amount of duty outstanding and the interest payable thereon should be treated as "recoverable arrears of revenue" and all permissible action under the law including the action under section 11 of the Central Excise Act, 1944 and under section 142 of the Customs Act, 1962 should be taken. Such amounts are required to be accounted for and reported as "realizable arrears of revenue" in the relevant statement.
Inclusion of Ship Demurrage Charges in the Assessable Value of Imported Goods
Circular No. 764/80/2003-CX3 Dated 04.12.2003 : Supreme court has issued a clarificatory order in response of an application filed by the Department seeking clarification on the order made by the Hon’ble Supreme Court on 08.10.2001 in the case of Commissioner of Customs, Chennai vs. M/s. Yeses International. As indicated in Para 6 of the said judgment, as regards the demurrage charges, counsel for the Department had stated that they cannot be included in the assessable value. Having regard to the matter the Hon’ble Supreme Court has vide order dated 13.10.2003 clarified that the judgment dated 08.10.2001 in regard to the demurrage is based on the facts of this case as also on a concession made by the counsel appearing for the revenue and that the question of law pertaining to the demurrage has not been decided in the said judgment.
Fixation Of Brand Rate Of Duty Drawback - Removal Of Difficulties
Circular No. 108/2003 Dated 17.12.2003 : Clarification has been provided in respect of doubt that while computing the duty drawback amount, the duty incidence on the original import value or local value, as the case may be, should be deducted from the total drawback amount in terms of Rule 3(2)(d) of the Customs and Central Excise Duties Drawback Rules, 1995. It has been clarified that Rule 3(2)(d) inter- alia provides for the incorporation of average amount of duties paid, on materials wasted in the process of manufacture. In terms of proviso to this Rule, if any waste is sold, the average amount of duties on the waste so sold shall be deducted. A plain reading of the aforesaid provisions means that while fixing the drawback rate, the exporter has to be given drawback on that quantum of material which is normally wasted in the process of manufacture. It is for this reason that for the manufacture of a particular quantity of export product, the exporter in fact is using more quantity ( including wastage) and paying more value as well as duty on these raw materials. But it should be appreciated that the recovered waste shall obviously be having different value compared to the original value of prime goods.
It is, therefore, clarified that for determining drawback, first the duty incidence amount should be computed on all the raw materials including the reasonable quantum of waste and, if any such waste is sold then the average amount of duties on such waste so sold shall be deducted.
Anti Dumping Case
Notification No. 177/2003 Dated 15.12.2003 : Anti Dumping Duty has been imposed on Chloroquine Phosphate from China PR
Amendment to Notification No. 23/2002-CUSTOMS, Dated the Ist March, 2002
Notification No. 176/2003 Dated 10.12.2003 : In the notification after the third proviso, the following proviso has been inserted, namely:-
Provided also that nothing contained in this notification shall apply in respect of the goods specified under serial No. 42B of the said Table on or after the 1st day of May, 2005.;
Also, in the Table, after S.No. 42A and the entries relating thereto, a new entry with S.No. 42B and entries releted to it has been inserted.
Amendment to Notification No. 21/2002-CUSTOMS, Dated the Ist March, 2002
Notification No. 175/2003 Dated 10.12.2003 : In the notification
in the proviso, after clause (c), the following clause has been inserted, namely:-
"(d) the goods specified against S.No. 252A of the said Table on or after the 1st day of May, 2005"
in the Table, after S.No. 252 and the entries relating thereto, a new entry with S.No. 252A and entries related to it has been inserted.
Classification of Uninterrupted Power Supply System (UPSS) under the Customs & Central Excise Tariff Act
Circular No. 104/2003 Dated 09.12.2003 : It has been clarified that the UPSS will merit classification under sub-heading 8504 of the Customs Tariff Act, 1975 and 8504.00 of the Central Excise Tariff Act, 1985. All pending assessments may be finalized accordingly. Circular No. 10/2002-Cus dated 4.2.2002 stands modified accordingly.
Dutiability of Coke Breeze Generated in Process of Manufacturing of Pig Iron/Steel Through COREX Technology
Circular No. 103/2003 Dated 09.12.2003 : As the notification No. 21/2002-Cus. dated 1.3.2002 (sl. no. 71) had levied concessional rate of duty on metallurgical coke imported for manufacture of Pig Iron/Steel using blast furnace and Notification No. 69/2000-Cus. dated 19.5.2000 exempted such metallurgical coke from anti-dumping duty. Both the above notifications had been amended by Notification Nos. 4/2003-Cus & 5/2003-Cus both dated 3.1.2003 to extend the concession to metallurgical coke even in cases where pig iron/steel is manufactured by COREX technology. In view of this, Circular No. 56/2003-Cus dated 27.6.2003 has been made applicable w.e.f. 3.1.2003 mutatis mutandis, to coke breeze generated during the process of charging metallurgical coke used for making pig iron/steel using COREX technology.
Attempt to Avail Drawback by Fictitious/Non-Existent Companies
Circular No. 102/2003 Dated 08.12.2003 : Commissioner of Customs (Preventive), New Delhi has reported that the exporter namely M/s. Gama Exims mentioned at S.No.26 of the list, which contains names of 27 fictitious/non-existent companies and these companies were trying to avail duty drawback by showing export, is genuine. It has been directed that the name of "M/s. Gama Exims, 51, Banshi Pura, S.K. Road, Meerut (UP)" may therefore be deleted from the said list.
Appointment of Officials of Customs In Supersession of Notification No. 201/84, Dated 18th July, 1984
Notification No. 110/2003-N.T. Dated 08.12.2003 : The Central Board of Excise and Customs has appointed :
Deputy Commissioner of Customs, Special Economic Zone, to be the Deputy Commissioner of Customs;
Assistant Commissioner of Customs, Special Economic Zone, to be the Assistant Commissioner of Customs;
Appraiser, Superintendent (Preventive and Intelligence), Examiner and Preventive Officer, Special Economic Zone, to be officers of customs;
Amendment to Notification No. 15/2002 Dated 07.03.2002
Notification No. 109/2003-N.T. Dated 08.12.2003 : In the notification, in the Table, for the words "Export Processing Zone", wherever it appears, the words "Special Economic Zone" have been substituted.
Sale of Government of India Treasury Bills by Auction
Notification No. 2 (1)-W&M/2001 Dated 13.12.2003 : The Government of India has made the amendment to the Ministry of Finance Notification F. No.2(12)-W&M/97 dated 31st March, 1998 relating to the sale of Government of India Treasury Bills by auction:-
In the paragraph 4(ii) the application form (Annexure II) has been substituted by the new format.
Change in Address of Mumbai Debt Recovery Tribunals
Notification No GSR935(E) Dated 09.12.2003 : The Central Government has notified the change in the location of Mumbai Debts Recovery Tribunal No. 1, Mumbai Debts Recovery Tribunal No. 2 and Mumbai Debts Recovery Tribunal No. 3 w.e.f. 5th December, 2003.
Purchase/Sale of Shares and/or Convertible Debentures by SEBI registered FIIs under PIS
Circular No. A.P.(DIR Series) Circular No. 53 Dated 17.12.2003 : Having regard to the matter that a SEBI registered FII may apply to the Reserve Bank for grant of permission to purchase shares or convertible debentures of an Indian company under Portfolio Investment Scheme (PIS), it has now been decided to permit SEBI registered FIIs/ sub- accounts of FIIs to buy/sell equity shares/debentures of Indian companies (excluding companies engaged in the print media sector), units of domestic mutual funds, dated Government Securities and Treasury Bills through stock exchanges in India at the ruling market price, invest / trade in exchange traded derivative contracts, and also to buy/sell shares and debentures etc. of listed/unlisted companies otherwise than on stock exchange at a price approved by SEBI/ Reserve Bank as per terms and conditions prescribed in the behalf. For the purpose of FII investment, Government Securities would include dated securities of both Government of India and State Governments of all maturities and Treasury Bills of Government of India. Investment in Government dated securities and Treasury Bills by FIIs may be made either in the primary market (at the auction/floatation) or in the secondary market. The investments will be made subject to SEBI (FIIs) Regulations, 1995 modified by SEBI/Government of India from time to time as published in the official Gazette of India.
Delhi High Court Order in Civil Writ Petition No.460 of 2003 - World Cup 2003 - Remittance of Foreign Exchange
Circular No. A.P.(DIR Series) Circular No. 52 Dated 17.12.2003 : As per the A.P.(DIR Series) Circular No.74 dated January 24, 2003, Authorised Dealers were directed not to release any foreign exchange to Pepsi Foods Limited, Hero Honda Motors Limited and LG Electronics India Pvt. Ltd. in connection with the World Cup event, without prior clearance from the Reserve Bank of India. In view of the disposal of the writ petition by the Hon’ble High Court of Delhi vide its order dated October 1, 2003, the A.P.(DIR Series) Circular No.74 dated January 24, 2003 has been withdrawn. Accordingly, all Authorised Dealers are now free to dispose of pending applications relating to the World Cup event, subject to usual conditions.
Foreign Exchange Management (Insurance) Regulations, 2000 - Life Insurance Memorandum (LIM)
Circular No. A.P.(DIR Series) Circular No. 51 Dated 15.12.2003 : It has been decided that :
Resident beneficiaries of the insurance claims/ maturity/ surrender value settled in foreign currency may be permitted to open and credit the proceeds thereof to their RFC (Domestic) Account instead of RFC Account.
Non-Resident Indian Policy Holders who are beneficiaries of insurance claims/maturity or surrender value settled in foreign currency in respect of policies issued by Insurance Companies in India and registered with Insurance Regulatory and Development Authority to conduct insurance business may be permitted to credit the proceeds to the RFC Account opened by them on their becoming residents.
Exim Bank's Line of Credit of USD 200 Million to Seven Iranian Banks
Circular No. A.P.(DIR Series) Circular No. 50 Dated 15.12.2003 : The Export-Import Bank of India (Exim Bank) has concluded an agreement with seven Iranian banks on January 25, 2003 making available to these banks in Iran a Line of Credit (LOC) upto an aggregate sum of USD 200 million (U.S.Dollar Two hundred million only). The credit agreement has become effective from September 15, 2003 and is available for financing export from India of eligible capital goods and related services of Indian origin to buyers in Iran.
The terminal date for conclusion of Individual Letters of Agreement is December 31, 2005. Shipments under the credit will have to be declared on GR/SDF Forms as usual. It has also been made clear that no agency commission shall be payable in respect of exports financed under the above line of credit
Advance Remittance for Imports
Circular No. A.P.(DIR Series) Circular No. 49 Dated 15.12.2003 : It has been clarified that a Public Sector Company or a Department/Undertaking of the Central/State Government/s which is not in a position to obtain a guarantee from an international bank of repute against an advance payment, is required to obtain a specific waiver for the bank guarantee from the Ministry of Finance, Government of India before making advance remittance exceeding USD 100, 000.
Deferred Payments Protocols Between the Government of India and erstwhile USSR
Circular No. A.P.(DIR Series) Circular No. 48 Dated 15.12.2003 : Having regard to the rupee value of the special currency basket effective from August 19, 2003 Authorised Dealers have been advised that a further change has taken place on November 18, 2003 and accordingly the rupee value of the special currency basket effective from November 21, 2003 has been fixed at Rs.57.5082.
Hedging of Overseas Direct Investments
Circular No A.P.(DIR Series) Circular No. 47 Dated 12.12.2003 : It has been decided that henceforth resident entities having overseas direct investments may be permitted to hedge the exchange risk arising out of such investments. Accordingly, Authorised Dealers may enter into forward/option contracts with residents who wish to hedge their overseas direct investments (in equity and loan), subject to verification of such exposure and provided further that the contracts are completed by delivery or rolled over on the due date.
Master Circular - Para-Banking Activities
Notification No. DBOD.FSC.No. 56/24.01.001/2003-04 Dated 12.12.2003 : The Reserve Bank of India has, from time to time, has beenissuing a number of circulars to banks containing instructions on matters relating to para-banking activities. In order to enable the banks to have all the existing instructions on the subject at one place, this Master Circular has been prepared. The Master Circular incorporates all the instructions/guidelines issued on para-banking activities upto June 30, 2003 which are operational as on date.
Prudential Guidelines on Banks’ Investment in Non-SLR Securities
Notification No. DBOD.BP.BC. 53/21.04.141/2003-04 Dated 10.12.2003 : Based on the feedback received from market participants on the Prudential Guidelines in respect of Banks’ Investments in Non-SLR Securities, the banks were advised that they were allowed time up to March 31, 2004 for compliance. With a view to operationalising the guidelines and to ensure a smooth transition, certain clarifications and modifications have been advised.
RBI's General Permission for SEBI Registered FIIs
Press Release No. 2003-2004/750 Dated 17.12.2003 : In order to simplify the procedure for registration of the FIIs, it has been decided to do away with the requirement of obtaining clearance from the Reserve Bank and SEBI separately. Authorised dealers have now been allowed, through general permission, to open a bank account (either in foreign currency and/or in rupees) for an FII that has already been registered with SEBI.
Pay Income-Tax Dues in Advance at Any Designated Bank Branch : RBI
Press Release No. 2003-2004/726 Dated 11.12.2003 : The Reserve Bank of India has advised income-tax assessees in the cities of Mumbai and Navi Mumbai to take advantage of paying their income tax dues at any of the designated bank branches. The income-tax department has authorised approximately 844 computerised branches of public sector banks and private sector banks in Mumbai and Navi Mumbai to accept payment of income-tax dues
Nomination in Favour of NRI by Investors in Savings Bonds
Press Release No. 2003-2004/723 Dated 10.12.2003 : It has been decided that sole holder of the bond (6.5 per cent Savings Bond, 2003 (Non-Taxable) or 8 per cent Savings Bond (Taxable)) may nominate an NRI as his nominee in respect of interest/redemption value of the investment in the bonds and the nomination will be registered in the books of the Bank/agencies. The normal regulations in regard to the foreign remittances as applicable to NRIs from time to time will continue to govern these cases also.
Clarification Regarding Duty Free import of Natural Rubber
Circular No. 22(RE-2003)/2002-2007 Dated 11.12.2003 : It has been decided to extend the validity of Advance Licences/DFRC/Advance Licence for annual requirement for import of natuarl rubber licences upto 31st March, 2004.
It has also been clarified that where the applicant had applied for Natural Rubber as one of the inputs under the provision of self declared licence in terms of Paragraph 4.7 of the Handbook of Procedure Vol.I, 2002-07, ( the earlier paragraph 7.5 of Handbook of Procedure Vol.I, 1997-2002) and adhoc norms were approved by ALC after deleting Natural Rubber, the applicant is required to submit their application to ALC at HQ latest by 31st December, 2003. All such cases will be decided by ALC within 15 days from the date of receipt of the application in HQ . Such licences for import/procurement of natural rubber will be valid upto 31st March, 2004 for expired licences and till the validity of the licencing period for other licences.
Amendments In The Handbook of Procedures (Vol. 1)
Public Notice No. 36(RE-03)/2002-07 Dated 10.12.2003 : In exercise of the powers conferred under Paragraph 2.4 of the Export and Import Policy 2002-2007, as amended, the Director General of Foreign Trade has made the following amendments :-
The word "average" appearing in second line of Sl. No. (ix) under the certificate of Chartered Accountant/Cost & Works Accountant, Company Secretary of Appendix 17 stands deleted
Paragraph 3.2.2 of the Handbook has been amended.
The address of the authorised branches of Central Bank of India at Sl.No.2 under the State Orissa in Appendix-29A has been amended to read as "Mahatabh Road, Cuttack-753001."
The address and the contact numbers of the office of Jt.DGFT, Rajkot at S.No. 18 of Appendix-24 has been amended.
A new Sub-paragraph 4.4.5 has been incorporated and at the end of Paragraph 2.35.5 of Handbook of Procedure, the following clause has been added:
"No permission for transfer will be required in case the imported goods are re-exported. However, the re-export shall be subject to all conditionality, or requirement of licence, or permission, as may be required under Schedule II of ITC(HS) Classification.".
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