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[No.78]
February 29, 2004 |
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Cases
Source:
Westlawinternational.com
After their contract to make mail sacks for the United States
Postal Service was terminated, respondents brought suit alleging, inter alia,
that the Postal Service had sought to suppress competition and create a monopoly
in mail sack production. The District Court dismissed the antitrust claims,
concluding that the Postal Service is not subject to liability under federal
antitrust law. The Ninth Circuit reversed, holding that the Postal Service can
be liable but that it has a limited immunity from antitrust liability for
conduct undertaken at Congress command. Held: The Postal Service is
not subject to antitrust liability. In both form and function, it is not a
separate antitrust person from the United States but is part of the Government,
and so is not controlled by the antitrust laws.
United States Postal Service v.Flamingo Industries (USA) Ltd.
et al.
Washington State established its Promise Scholarship Program
to assist academically gifted students with postsecondary education expenses. In
accordance with the State Constitution, students may not use such a scholarship
to pursue a devotional theology degree. Respondent Davey was awarded a Promise
Scholarship and chose to attend Northwest College, a private, church-affiliated
institution that is eligible under the program. When he enrolled, Davey chose a
double major in pastoral ministries and business management/administration. It
is undisputed that the pastoral ministries degree is devotional. After learning
that he could not use his scholarship to pursue that degree, Davey brought
action for an injunction and damages, arguing that the denial of his scholarship
violated, inter alia, the First Amendments Free
Exercise and Establishment Clauses. Held Washingtons exclusion
of the pursuit of a devotional theology degree from its otherwise-inclusive
scholarship aid program does not violate the Free Exercise Clause. Nothing in
the Washington Constitutions history or text or in the programs operation
suggests animus towards religion. Given the historic and substantial state
interest at issue, it cannot be concluded that the denial of funding for
vocational religious instruction alone is inherently constitutionally suspect.
Without a presumption of unconstitutionality, Daveys claim must
fail.
Locke, Governor Of Washington, et al. v Davey
Under Article 17 of the Warsaw Convention (Convention), an
air carrier is liable for a passengers death or bodily injury caused by
an accident occurring on an international flight.
Accident refers to
an unexpected or unusual event or happening that is external to the
passenger, not to the passengers own internal reaction to the usual, normal, and expected operation of
the aircraft. While Rubina Husain (hereinafter respondent) and her husband, Dr.
Hanson, were traveling overseas, she requested that petitioner Olympic Airways
provide seats away from the smoking section because Dr. Hanson had asthma and
was sensitive to secondhand smoke. After boarding, they discovered that their
seats were only three rows in front of the smoking section. A flight attendant
refused respondents three requests to move Dr. Hanson. As the smoking noticeably
increased, Dr. Hanson walked toward the front of the plane to get fresher air.
He then received medical assistance but died. Respondents filed a wrongful-death
suit. Held: The conduct here constitutes an accident under
Article 17 as the flight attendants refusal to reseat Dr. Hanson was clearly
external to him, and unexpected and unusual in light of industry standards.
Olympic Airways v. Husain, Individually, and as Personal
Representative of the Estate of Hanson, deceased, et al.
News
While announcing his support for a constitutional amendment
defining "marriage as a union of a man and woman as husband and wife,"
President Bush has hinted that state legislatures could define "legal
arrangements other than marriage" for same-sex couples. But those
arrangements are unlikely to make very many people on either side of the issue
happy because it would create the question of whether all states would have to
recognize the not-exactly-marriage agreements that other states create for gay
and lesbian couples. One example is Vermont's Civil Union law that took effect
in 2000. Same-sex couples in that state who obtain a civil union license and get
it certified gain all the same benefits, protections and responsibilities under
Vermont law that are granted to spouses in a traditional marriage. But unlike
marriages, which are respected from state to state, Vermont's civil unions are
not recognized by states without similar laws.
The Justice Department has subpoenaed hundreds of medical records
from six Planned Parenthood sites as part of the government's defense in
lawsuits challenging the Partial-Birth Abortion Act. As per the court documents,
Justice Department lawyers say the records which would be edited to remove names
and other personal information are essential to defend the law against the
lawsuits brought by Planned Parenthood and doctor groups around the country. The
suits challenge the law that prohibits a procedure referred to by critics as
partial-birth abortion but by medical organizations as "intact dilation and
extraction." During the procedure, a fetus's legs and torso are pulled from
the uterus before its skull is punctured. Planned Parenthood has resisted
producing the medical records, which critics of the subpoenas say threatens the
privacy of patients and could intimidate doctors and clinics that provide
abortions. The Justice Department also is seeking similar records from six
hospitals where doctors who are challenging the partial-birth abortion law did
the procedure. The department is encountering resistance over privacy concerns.
The lawsuits claim that the ban on this contested type of abortion is
unconstitutional because it is too broad and lacks an exception for a woman's
health.
Federal Judge Miriam Goldman Cedarbaum's decision to
dismiss a charge that Martha Stewart defrauded investors in her own company by
lying about her sale of ImClone stock turned on the different standards for
"evidentiary sufficiency" in criminal and civil securities fraud
cases. White-collar crime experts say that the impact of the missing charge can
cut both ways when the jury convenes to consider the remaining charges against
Stewart and her co-defendant, former Merrill Lynch broker Peter Bacanovic.
Cedarbaum, of the Southern District of New York, decided that prosecutors had
presented only "weak" evidence that Stewart intended to deceive
investors in Martha Stewart Living Omnimedia (MSL) when she issued a string of
public denials about ImClone in June 2002. The judge said in a 23-page opinion
that the evidence on intent fell far short of the requirement in criminal cases
to prove every fact beyond a reasonable doubt, and a guilty verdict on the issue
of intent to defraud could only have been reached through "speculation and
surmise" by the jury. But the judge also said she felt the prosecution had
met its evidentiary burden to get the remaining counts to the jury.
The former Baylor University basketball player accused of
shooting dead a teammate will face trial on a murder charge on Aug. 9, a Texas
court clerk said on Friday. Carlton Dotson will have to face five years to life
in prison if he is convicted of killing teammate and former roommate Patrick
Dennehy with two gunshots to his head. Dennehy, 21, a 6-foot, 10-inch center who
had transferred to Baylor, a Baptist university, from the University of New
Mexico, disappeared on June 12, 2003, and his badly decomposed body was found on
July 25 a few miles from the arena in the central Texas city of Waco, where
Baylor plays its basketball games. Dotson, 21, a 6-foot, 7-inch forward, had
left Baylor's basketball team to find another college team that would offer him
more playing time. The men's basketball program at Baylor went into a downward
spiral after Dennehy went missing.
Federal prosecutors are going after the lavish homes of two
former top Enron Corp. executives accused of duping investors. The $4.7 million
home of former CEO Jeffrey Skilling and the $950,000 residence of ex-top
accountant Richard Causey are among many forfeiture actions pending against
defendants in Enron-related criminal cases. The property not only includes
mansions but cars, vacation property and even a necklace and bracelet set
dripping with diamonds and sapphires. In the case against Skilling and Causey,
the government also wants cash - more than $50 million for Skilling and about $3
million for Causey. Prosecutors also want to seize a Dallas townhouse Skilling
bought two years ago that is occupied by his daughter. Skilling and Causey have
pleaded innocent to fraud, conspiracy and insider trading charges. The
forfeiture cases will be considered after the criminal charges are resolved.
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SEBI
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Secondary Market Division
Circular No. SEBI/MRD/SE/Cir-12/2004
Dated 26.02.2004 : BSE/NSE have been jointly deciding on the security specific
surveillance measures including transferring of scrips from rolling settlement
to trade for trade segment and vice-versa, imposition of margins, suspension of
trading, etc. It has, therefore, been decided that all stock exchanges shall
implement the security specific decisions taken by BSE/NSE such as transferring
of scrips from rolling settlement to trade for trade segment and vice-versa,
imposition of margins, suspension of trading, etc in cases where such securities
are also listed and traded on those stock exchanges. For this purpose, all the
stock exchanges shall obtain the necessary information regularly from the
website/s of BSE/NSE and concurrently implement the security specific decisions
taken by BSE/NSE. It has also been decided that in the event of any stock
exchange not able to implement the decisions taken by BSE/NSE with regard to
particular scrip, such stock exchange/s shall not make available trading in such
scrip in the normal rolling settlement.
Circular No. SEBI/MRD/SE/Cir-11/2004
Dated 25.02.2004 : A model format for the issuance of electronic contract note
for the debt market has been issued by the SEBI . Based on this, the exchanges
are advised to prescribe a standard format for issuance of the electronic
contract note in its bye-laws, rules and regulations.
Circular No. SEBI/DNPD/Cir-
20/2004/02/23 Dated 23.02.2004 : It has been noticed that in the recent past,
with the increase in prices of underlying stock, the contract size/value of most
derivative contracts have far exceeded the stipulated value of Rs. 2 Lakhs. In
case of some derivative contracts, due to a fall in the price of the underlying
stock; the contract size/value has fallen below Rs. 2 Lakhs. It has therefore
been decided that the lot size/multiplier shall be reduced for contracts with
value exceeding Rs. 2 Lakhs. It has also been decided that the lot
size/multiplier shall be increased for contracts with value less than Rs. 2
Lakhs.
Accordingly, for derivative
contracts which have a contract size/value of Rs.4 Lakh and above, the lot
size/multiplier shall be reduced to one-half of the existing lot
size/multiplier. For derivative contracts which have a contract size/value of
Rs.8 Lakh and above, the lot size/multiplier shall be reduced to one-fourth of
the existing lot size/multiplier.
Similarly, where the contract
size of the derivative contracts is less than Rs. 2 Lakhs, for the sake of
standardisation, the existing lot size / multiplier shall be increased so as to
bring the contract size to Rs. 2 Lakhs. The increase shall be carried out by
increasing the lot size/multiplier in multiples of 2.
To facilitate the all the
aforesaid measures, the stipulation given earlier that the lot size/multiplier
should be in the multiple of 100 stands revoked.
Foreign Institutional Investor
Issuance of Offshore Derivative Instruments by
Registered Foreign Institutional Investors (FII)
Circular No. IMD/CUST/13/2004
Dated 19.02.2004 : it is hereby clarified that the following entities would be
deemed to be regulated entities for the purpose of Regulation 15A of the
Securities and Exchange Board of India (Foreign Institutional Investors)
Regulations, 1995 :
(a) Any entity incorporated in
a jurisdiction that requires filing of constitutional and/or other documents
with a registrar of companies or comparable regulatory agency or body under the
applicable companies legislation in that jurisdiction;
(b) Any entity that is
regulated, authorised or supervised by a central bank, such as the Bank of
England, the Federal Reserve, the Hong Kong Monetary Authority, the Monetary
Authority of Singapore or any other similar body provided that the entity must
not only be authorised but also be regulated by the aforesaid regulatory bodies;
(c)Any entity that is
regulated, authorised or supervised by a securities or futures commission, such
as the Financial Services Authority (UK), the Securities and Exchange Commission
(USA), the Commodities Futures Trading Commission (USA), the Securities and
Futures Commission (Hong Kong or Taiwan), Australian Securities and Investments
Commission (Australia) or other securities or futures authority or commission in
any country , state or territory ;
(d)Any entity that is a member
of securities or futures exchanges such as the New York Stock Exchange (USA),
London Stock Exchange (UK), Tokyo Stock Exchange (Japan), NASD (USA) or other
similar self-regulatory securities or futures authority or commission within any
country, state or territory provided that the aforesaid mentioned organizations
which are in the nature of self regulatory organizations are ultimately
accountable to the respective securities / financial market regulators.
(e)Any individual or entity
(such as fund, trust, collective investment scheme, investment company or
limited partnership) whose investment advisory function is managed by an entity
satisfying the criteria of (a), (b) ,(c) or (d) above.
Regulations
Securities and Exchange Board of India (Foreign
Institutional Investors) (Second Amendment) Regulations, 2004
Notification No. SEBI/LAD/DOP/3349/2004
Dated 19.02.2004 : In the Securities and Exchange Board of India (Foreign
Institutional Investors) Regulations, 1995, in regulation 15, in sub-regulation
(3), in clause (c):
(i) in the second proviso,
after the words "Securities and Exchange Board of India (Substantial
Acquisition of Shares and Takeovers) Regulations, 1997" and before the
colon, the following words and figures have been inserted, namely: "or to
sale of securities by a Foreign Institutional Investor in response to an offer
made by any promoter or acquirer in accordance with the Securities and Exchange
Board of India (Delisting of Securities) Guidelines, 2003"
(ii) after the fourth proviso,
the following proviso has been inserted, namely:
"Provided further that
nothing contained in clause (c) shall apply to any bid for, or acquisition of,
securities by a Foreign Institutional Investor in response to an offer for
disinvestment of shares made by the Central Government or any State
Government."
The above mentioned amendments
have been made effective from 19.02.2004.
Notification No. SEBI/LAD/DOP/3348/2004
Dated 19.02.2004 : The Board has made the Regulations namely Securities and
Exchange Board of India (Self Regulatory Organizations) Regulations, 2004 to be
effective from the date specified by the Board in this behalf.
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Department of Company Affairs
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Amendment to Notification No. SO 1329, Dated 08.05.1978-
Institutions Specified as Public Financial Institutions
Notification No. S.O. 219(E)
Dated 23.02.2004 : In the notification, after serial number 40, the following
serial numbers and the entries relating thereto have been inserted, name1y:
"41. National Dairy
Development Board;
42. The Pradeshiya Industrial
and Investment Corporation of U.P Limited;
43. Rajasthan State Industrial
Development and Investment Corporation Limited;
44. State Industrial
Development Corporation of Maharashtra Limited;
45. West Bengal Industrial
Development Corporation Limited;
46. Tamil Nadu Industrial
Development Corporation Limited":
Notification No. GSR 130(E)
Dated 23.02.2004 : The Central Government has noticed that the demand for the
category of goods specified in the below is substantially in excess of the
production or supply of such goods and that the services of the sole selling
agents will not be necessary to create a market for such goods. It has been
decided and declared that sole selling agents shall not be appointed by any
company for the sale of such goods in India for a period of three years from the
date of publication of this notification in the Official Gazette. The goods are
:-
Every category of "Bulk
drugs", "drugs" and "formulations" as defined in the
Drugs (prices Control) Order, 1995, not being,-
(i) any bonafide preparation
included in the Ayurvedic (including Siddha) or Unani (Tibb) systems of
medicine; or
(ii) any preparation including
in the Homoeopathic system of medicine.
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CBDT
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Corrigendum to Notification No. SO169(E) Dated 6th
February, 2004
Notification No. 55/2004 Dated
19.02.2004 : ).--In the notification :
at page 13, in para (1) for
"sub-clause (iii)", read "sub-clause (i)".
Notification No. 54/2004 Dated
19.02.2004 : The Central Government has specified the "IDBI Flexibonds
2003-2004" issued by Industrial Development Bank of India for the purpose of
clause (ii)(b) of the proviso to Section 193 of the Income Tax Act, 1961:
Provided that the benefit under
the said proviso shall be admissible in the case of transfer of such bonds by
endorsement or delivery, only if the transferee informs the Industrial
Development Bank of India, Mumbai, by registered post within a period of sixty
days of such transfer.
Circular No. F.No. 176/SZ/2002-ITAJ
Dated 17.02.2004 : The Board had decided earlier that all the appeals which
pertain to Section 80HHC and Section 80HHE of the Income Tax Act, 1961 pending
at the level of CIT (Appeals) be kept in abeyance and not to enforce the
collection of demand attributable to such issues. At that time,it was further
decided that the assessments involving such issues pending at the level of
Assessing Officers may also be kept to abeyance till 30th November, 2003 by
which time the decision in these issues was expected to be finalized, unless the
matter was getting time-barred.
Now, after a detailed
examination of the issues relating to Section 80HHC, including the allowance of
the deduction on credits in respect of the Duty Entitlement Passbook Scheme, it
has been decided that it is not feasible for the Board to intervene in these
matters, at this stage. However, the issue regarding section 80HHE has already
been clarified and accordingly a Circular No.3/2004 dated 12th February 2004 has
been issued in this regard.
The Board's direction for
keeping in abeyance various appeals / enforcement of collection of demand /
assessments involving such issues as mentioned in Para 1 above is extended from
30th November 2003 till the date of issue of this letter.
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CBEC Excise Tariff
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Omission of Para 6 from Circular No.766/82/2003-CX Dated
15th December, 2003 Regarding Default in Monthly Payment of Duty
Circular No. 776/9/2004-CX
Dated 19.02.2004 : It has been directed to treat para 6 of the Circular No.
766/82/2003-CX Dated 15th December, 2003 as "omitted" from the said
Circular.
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CBEC Excise non Tariff
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Amendment to Notification No. 14/2002 Central Excise (N.T.),
Dated 08.03.2002
Notification No. 5/2004 NT
Dated 26.02.2004 : In the notification :
i) in Table I, against S.No.14,
in column (2), for the entry, the entry "Mysore" has been substituted; and
ii) in Table IA, against
S.No.14, in column(2), for the entry, the entry "Mysore" has been
substituted.
The notification has been made
effective on and from the 1st day of March, 2004.
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CBEC Customs Tariff
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Amendment to Notification No. 21/2002-Customs Dated the
1st March, 2002
Notification No. 39/2004 Dated
26.02.2004 : In the notification, in the Table, S. No. 190B, and the entries
relating thereto, have been substituted.
Notification No. 38/2004 Dated
24.02.2004 : In the notification, in the Table :-
(i) against S. No. 71, for the
entry in column (4), the entry 5% has been substituted;
(ii) after S. No. 190 and the
entries relating thereto, the new S No. 190A & 190B and entries relating to
them have been inserted, namely:-
(iii) against S. No. 197, for
the entry in column (4), the entry 10% has been substituted;
(iv) against S. No. 207, for
the entry in column (3), the following entry has been substituted, namely:-
"All goods, other than the
following:-
(i) goods falling under the
heading 7202;
(ii) goods mentioned against S.
Nos. 190A, 190B, 197, 198, 200 or 202 above; and
(iii) seconds and defectives of
goods falling under Chapter 72."
Notification No. 37/2004 Dated
20.02.2004 : Anti dumping duty has been imposed on Potassium Carbonate from EU,
China RP, Korea RP and Taiwan.
Circular No. 18/2004 Dated
20.02.2004 : The Board, has on the recommendation of the Conference, clarified
that use of indigenous materials in jobbing work will not take the processes
undertaken out of 'job-work' or jobbing. The definition of jobbing may be
derived from the scope of the term "job work" clarified by Hon'ble
Supreme Court in para 17 of their judgment in the case of Prestige Engineering
(India) Ltd. V/s CCE Meerut [1994 (73) ELT 497 (SC)].
Circular No. 17/2004 Dated
20.02.2004 : On the recommendation of the Conference, wherein it was explained
that the main function of the item is cooling the proximate space in the CPU,
and the item has no function in the data processing aspect, the Conference held
that the item is more appropriately classifiable under CTH 8414 59 10 as
"Other fan", the Board has clarified that 'CPU cooler fan with heat
sink' is appropriately classifiable under CTH 84145910.
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CBEC Customs Non Tariff
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Amendment to Notification No. 36/2001- Customs (N.T.)
Dated 03.08.2001
Notification No. 24/2004-N.T.
Dated 25.02.2004 : In the notification, the Table has been substituted.
Notification No. 23/2004-N.T.
Dated 24.02.2004 : The Board has determined relating to export goods, the rate
of exchange of conversion of certain specified foreign currency into Indian
currency or vice versa which has been made effective from the 1st March, 2004.
Notification No. 22/2004-N.T.
Dated 24.02.2004 : The Board has determined relating to imported goods, the rate
of exchange of conversion of certain specified foreign currency into Indian
currency or vice versa which has been made effective from the 1st March, 2004.
Notification No. 21/2004-N.T.
Dated 23.02.2004 : The Central Board of Excise and Customs has made the
regulations, namely Customs House Agents Licensing Regulations, 2004 to be
effective fromthe date of their publication in the Official Gazette i.e.
23.02.2004.
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RBI
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Current Account Transactions - Liberalisation
Circular No. A.P.(DIR Series)
Circular No. 76 Dated 24.02.2004 : In order to further simplify and liberalise
the current account transactions, the Reserve Bank of India has announced its
decision to freely allow the Authorised Dealers, the following categories of
remittances in terms of the Foreign Exchange Management Act (Current Account
Transactions) Rules, 2000:
1. For remittance for securing
Insurance for Health from a Company Abroad no Government's approval is required.
2. Remittance by artistes,
e.g., wrestlers, dancers, entertainers etc. can be made without prior approval
of RBI.
3. Commission to agents abroad
for sale of residential plots for amounts up to USD 25,000 or 5 per cent of the
inward remittance, whichever is higher.
4. Short terms credit to
overseas offices of Indian companies.
5. Remittance for advertisement
on foreign television where export earnings are less than Rs 10 lakh.
6. Remittance of royalty and
payment of lump sum fees, where agreements have not been registered with the
Reserve Bank, provided the payments are in conformity with the norms prescribed
under the Schedule II of the FEMA (Current Account Transactions) Rules 2000.
7. Remittances for use of
trademark/franchise. Purchase of trademarks/franchise would continue to require
prior approval of the Reserve Bank.
These transactions earlier
required prior approval of the Reserve Bank. Similarly, the remittances for
securing personal health insurance from a company abroad will not longer require
prior approval of the Government of India.
Circular No. A.P.(DIR Series)
Circular No. 75 Dated 23.02.2004 : It has been decided to permit eligible
resident corporates to raise external commercial borrowings (ECB) for overseas
direct investment in Joint Ventures (JV) /Wholly Owned Subsidiaries (WOS). This
will include mergers and acquisitions of overseas companies.
With a view to enable Indian
corporates to become global players by facilitating their overseas direct
investment, permitted end-use for ECB is enlarged to include overseas direct
investment in Joint Ventures (JV)/Wholly Owned Subsidiaries (WOS). This would
facilitate corporates to undertake fresh investment or expansion of existing JV/WOS
including mergers and acquisitions abroad by harnessing resources at globally
competitive rates.
Circular No. A.P.(DIR Series)
Circular No. 74 Dated 20.02.2004 : At present loans granted by the Indian
companies to the employees of their branches outside India require permission of
the Reserve Bank since such loans are treated as loans by a resident to a
non-resident. It has been clarified that though branches of Indian companies
outside India are treated as residents as per the definition, the employees of
such branches are treated as persons resident outside India.
As a further measure of
liberalisation and procedural simplification, it has been decided to grant
general permission to the Indian Companies in India to grant loans in foreign
currency to the employees of their branches outside India for personal purposes
in accordance with the lender's Staff Welfare Scheme/Loan Rules and other terms
and conditions as applicable to its staff resident in India and abroad.
Circular No. A.P.(DIR Series)
Circular No. 73 Dated 20.02.2004 : Export of goods by way of gift is permissible
subject to declaration by the exporter that goods are not more than one lakh
rupees in value. With a view to further liberalising the procedure it has been
decided to raise the above limit to five lakh rupees per annum with immediate
effect.
Circular No. A.P.(DIR Series)
Circular No. 72 Dated 20.02.2004 : It has been decided that where EDI system has
been implemented by customs and the importer receives only one copy of the
"ex-Bond Bill of Entry" from the customs, Authorised Dealers may
advise importer to submit a photocopy of the "ex-Bond Bill of Entry"
for home consumption after clearance of the goods from the warehouse / bond,
which may be duly verified by the Authorised Dealer and accepted as final
evidence of import.
Circular No. A.P.(DIR Series)
Circular No. 71 Dated 20.02.2004 : It has been decided to permit payment of
commission in free foreign exchange for exports of tea and tobacco to Russia
against repayment of State Credits upto 10 per cent of the invoice value.
Accordingly, Authorised Dealers may permit payment of commission in free foreign
exchange upto 10 per cent of invoice value for export of tea and tobacco only.
Notification No.
DBOD.Leg.BC.70/09.07.005/2003-2004 Dated 17.02.2004 : It has been presumed that
the Ad-hoc Committees set up by bank would have started looking into
simplification of procedures and practices with a view to safeguarding the
interests of common persons and to improve the customer service in the areas
mentioned in the circular. As a part of this exercise, the Ad-hoc Committee
could also submit to RBI, suitable recommendations for
modification/rationalization of existing RBI guidelines that could help in
further enhancing the customer service. The recommendations in this regard could
cover the interface with the individual customers in respect of the following
four broad categories and may be submitted on separate sheets to facilitate
action.
(a) foreign exchange
transactions
(b) government and public debt
transactions
(c) banking operations, and
(d) currency management
Notification No. DBS. FID. No.
C-13 / 01.02.00 / 2003-04 Dated 17.02.2004 : It has been decided, in
consultation with the Government of India, that the applications for one time
settlement (OTS) of chronic NPAs up to Rs. 10 crore may be received up to July
31, 2004. Consequently, the last date of processing the applications received up
to July 31, 2004 would also be extended to October 31, 2004.
Notification No. GSR121(E)
Dated 06.02.2004 : In the Notification the following has been added at the end :
"Foot-note : The Principal
Regulations were published in the Official Gazette vide No. G.S.R. 456(E) dated
08-05-2000 in Part II, Section 3, Sub-section (i) and subsequently last amended
vide No. G.S.R. 475(E) dated 24th April, 2002."
Notification No. GSR120(E)
Dated 06.02.2004 : In the Notification :-
(i) In Regulation 1, in clause
(ii), for the words "They shall come into force with immediate
effect", the words "They shall come into force from the date of
publication in the Gazette", have been substituted and read.
(ii) At the end of the
Notification, the following has been added :
"Foot-note : The Principal
Regulations were published in the Official Gazette vide No. G.S.R. 393(E) dated
03-05-2000 in Part II, Sections, Sub-section (i) and subsequently last amended
vide No. G.S.R. 200(E) dated 27th February, 2001."
Notification No. GSR119(E)
Dated 06.02.2004 : In the Notification:-
(i) In Regulation 1, in clause
(ii), for the words "They shall come into force with; immediate
effect", the words "They shall come into force from the date of
publication in the Gazette", have been substituted and read.
(ii) At the end of the
Notification, the following has been added :
"Foot-note : The Principal
Regulations were published in the Official Gazette vide No. G. S. R. 406(E)
dated 03-05-2000 in Part II, Section 3, Sub-section (i) and subsequently last
amended vide No. G. S. R. 574(E) dated 20th September, 2001."
Press Release No.
2003-2004/1030 Dated 26.02.2004 : A meeting of the High level Committee on
Capital and Financial Markets (HLCCFM) was held at the Reserve Bank of India
(RBI). Meeting focused on issues relating to, among other things, the listing of
securities receipts, participation of insurance companies in exchange traded
derivatives, regulation of private placement market and inter-regulatory
coordination in stock market related developments.
Press Release No.
2003-2004/1019 Dated 24.02.2004 : In order to further simplify and liberalise
the current account transactions, the Reserve Bank of India has announced its
decision to freely allow the Authorised Dealers, the following categories of
remittances in terms of the Foreign Exchange Management Act (Current Account
Transactions) Rules, 2000:
1. Remittance by artistes,
e.g., wrestlers, dancers, entertainers etc.
2. Commission to agents abroad
for sale of residential plots for amounts up to USD 25,000 or 5 per cent of the
inward remittance, whichever is higher.
3. Short terms credit to
overseas offices of Indian companies.
4. Remittance for advertisement
on foreign television where export earnings are less than Rs 10 lakh.
5. Remittance of royalty and
payment of lump sum fees, where agreements have not been registered with the
Reserve Bank, provided the payments are in conformity with the norms prescribed
under the Schedule II of the FEMA (Current Account Transactions) Rules 2000.
6. Remittances for use of
trademark/franchise. Purchase of trademarks/franchise would continue to require
prior approval of the Reserve Bank.
These transactions earlier
required prior approval of the Reserve Bank. Similarly, the remittances for
securing personal health insurance from a company abroad will not longer require
prior approval of the Government of India.
Press Release No.
2003-2004/1015 Dated 23.02.2004 : It has been decided to permit eligible
resident corporates to raise external commercial borrowings (ECB) for overseas
direct investment in Joint Ventures (JV) /Wholly Owned Subsidiaries (WOS). This
will include mergers and acquisitions of overseas companies.
Press Release No.
2003-2004/1003 Dated 20.02.2004 : The Real Time Gross Settlement (RTGS) system
is being implemented in two phases in India. Under the first phase, the RTGS
system with the functionalities for inter-bank fund transfer and customer based
inter-bank fund transfer has reached an advanced stage of implementation. The
RTGS system has been tested and is currently undergoing trial run with the
participation of four banks. It is a complex and critical system.
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DGFT
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Amendment/Correction in the Schedule of DEPB Rates
Public Notice No. 52
(RE-03)/2002-07 Dated 26.02.2004 : The Director General of Foreign Trade has
made the amendment /correction in the Schedule of DEPB rate. The corrections
have been made to the Schedule of DEPB rate published vide Public Notice No.47
(RE 2003)/2002-2007 dated 9th February, 2004 and these corrections have been
amde effective from 9th February, 2004.
Circular No. 28
(RE-2003)/2002-2007 Dated 19.02.2004 : It has been decided to allocate a
quantity of 8,000 MTs of Raw sugar from the freesale portion of 2003-2004 season
production (October1,2003 to September30, 2004) for export as Preferential Raw
Cane Sugar Tariff Rate quota for the fiscal year 2004 (October 1,2003 to
September 30, 2004) to USA and place the same at the disposal of M/s Indian
Sugar Exim Corporation Ltd., New Delhi.
It has also been decide that
the existing procedure in respect of preferential sugar export to USA for issue
of GSP certificate as well as other certification requirements if any prescribed
specifically for export of sugar to USA shall continue to be followed . The
Indian Sugar Exim Corporation Ltd., shall be the sole agency authorised to
export raw sugar from the free sale quota to USA.
Public Notice No. 51(RE-
03)/2002-07 Dated 17.02.2004 : The provision related to SEZ as incorporated vide
Public Notice No.11 dated 30.5.03 in paragraph 4.40, has been amended as follows
:-
"The exports made to the
Special Economic Zones[SEZs] as notified by the Department of Commerce , are
also entitled to DEPB"
Public Notice No. 50 (RE-
03)/2002-07 Dated 16.02.2004 : The Director General of Foreign Trade has made
the amendments/deletions/corrections and additions in the Handbook of
Procedures, Vol.2, 2002-2007, as amended. In the statement of Standard Input
Output Norms as contained in the Handbook of Procedures, Vol.2, 2002-2007, as
amended, amendments/ corrections/ deletion at appropriate places has been made.
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Department of Consumer Affairs
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Standard Weights and Measures (Packaged Commodities)
Amendment Rules, 2004
Notification No. GSR113(E)
Dated 12.02.2004 : In the Standards of Weights and Measures (Packaged
Commodities) Rules, 1977:-
(i) in rule 2, in clause (x),
in sub-clauses (i) and (ii) respectively the word "or" has been
inserted at the end.
(ii) rule 24, 25, 26, 33 have
been amended;
(iii) First, Third and Ninth
Schedules to the Rules have also been amended.
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Department of
Telecommunications
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Guidelines for Merger of Licences in Service Area
Notification No.
20-232/2004-BS.III Dated 21.02.2004 : In keeping with the policy of bringing in
sustained reforms in the Telecom sector in India for making the service
available in the most efficient and affordable manner, Government have decided,
after due consideration of the recommendations of Telecom Regulatory Authority
of India, the Guidelines for merger of Basic, Cellular and Unified Access
Service licences in a given Service Area for proper conduct of Telegraphs and
Telecommunication services, thereby serving the public interest in general and
consumer interest in particular. The salient features of the Guidelines are as
follows:-
(i) Merger of licences shall be
restricted to the same service area
(ii) In case of a merger of a
basic service license with UASL, the basic service licensee shall pay, at the
time of application for merger, the difference of amount of the entry fee, if
any, as per the Guidelines for migration to UASL dated 11.11.2003.
(iii) Merger of licences will
be permitted subject to the condition that, post merger, there are at least
three operators in that service area for that service.
(iv) Prior approval of the
Department of Telecommunications will be necessary for merger of the licence.
(v) With a view to preventing
the occurrence of any monopoly situation, the Guidelines provide that any
merger, acquisition or restructuring, leading to an operator having more than
67% of the market share in the given Service Area, shall not be permitted.
(vi) The spectrum utilization
charges beyond 10 + 10 MHz for GSM based system and 5 + 5 MHz for CDMA/ETDMA
based systems is to be prescribed separately. The merged entity will have to pay
the prescribed charges from the date of merger of licences.
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Ministry of Labour
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Prohibition on Employment of Contract Labour in Work
Specified
Notification No. SO210(E) Dated
19.02.2004 : The Central Government, after consultation with the Central
Advisory Contract Labour Board and having regard to the working conditions and
benefits provided to contract labour and other relevant factors, has prohibited
the employment of contract labour in the process, operation or the work
specified in the Schedule to the notification viz. Sorting out scraps and
rubbish/silt so collected, Cleaning of rubbish bins, Stacking and levelling of
coal/coke, etc, in the Kanchrapara Workshop of Eastern Railway, Kolkata with
effect from the date of publication of this Notification in the Official Gazette
i.e. 19.02.2004.
Notification No. SO209(E) Dated
19.02.2004 : The Central Government, after consultation with the Central
Advisory Contract Labour Board and having regard to the conditions of work and
benefits provided for the contract labour and other relevant factors, has
prohibited employment of contract labour in the job of 'Safaiwala' for sweeping,
cleaning of yard, platform, stores, office and garden including drains/latrines,
sprinkling of saw dust, scrapping and collection of garbages/rubbish, mud, silt
etc. and their disposal by lorry/railway wagon daily in Jheel Siding Coaching
complex and Howrah/Bamangachi Diesel Shed.
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Ministry of
Petroleum and Natural Gas
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Amendment to Order No. S.O. 170(E) Dated 13.02.2003
Order No. SO181(E) Dated
10.02.2004 : In the said order, for the words "one year", the words
"two years" have been substituted.
Order No. SO180(E) Dated
10.02.2004 : In the said order, for the words "one year", the words
"two years" have been substituted.
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Ministry of Urban Development
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Modifications in the Building Bye Laws, 1983
Notification No. SO212(E) Dated
17.02.2004 : The Central Government has made the following modification in the
Building Bye-laws, 1983 to be effective from the date of Publication of this
Notification in the Gazette of India i.e. 20.02.2004
Clause 6.8 of the Building
Bye-laws, 1983 has bee revised which is as under :--
"The sanction once
accepted through building permit shall remain valid for five years from the date
of sanction for the residential, industrial, commercial buildings as well as
larger complexes and multi-storeyed buildings, and such building as classified
under clause 2.54.2, 2.54.3 & 2.54.4. The building permit shall be got
revalidated before the expiry of this period. Revalidation shall be subject to
the Master Zonal Plan regulations and Building Bye-Laws, then in force, for the
area".
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Press Information Bureau
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Guidelines for Intra-Circle Merger of Access Services
Licences Issued - Press Note
Dated 21.02.2004 : After
considering the recommendations of the Telecom Regulatory Authority of India and
the suggestions of the industry, the Minister of Communications and IT has
approved the Guidelines for Merger of Licences for Access Services in a given
Service Area. It is expected that these Guidelines will further contribute
towards efficient utilization of resources, serving the consumer interests in
particular and public interest in general.
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Supreme Court |
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Union
of India (UOI) and Ors. Vs. Sri Janardhan Debanath and Anr.
The issue before Apex
Court was regarding the right to transfer a government or public sector
employee anywhere, in public interest. In the present case Centre was
aggrieved by the Guwahati High Court's injunction against the transfer
of some postal department employees who had to be shifted outside the
circle for they had dragged a senior woman officer, abused her and used
foul language against her to put pressure on her to withdraw
disciplinary proceedings against one of their colleagues.
The Bench said that
the allegations made against the employees were serious in nature and
their "conduct unbecoming". For the purpose of effecting a
transfer, the question of holding an inquiry was not necessary. What is
needed is the prima facie satisfaction of the authority concerned on
the 'contemporary reports' about the incident. Apex Court was of the
view that whether a transfer is in public interest or not, essentially
depends on the peculiar facts and circumstances of the case concerned.
No government servant or employee of a public undertaking has any legal
right to be posted forever at any one particular place or place of his
choice since transfer of a particular employee appointed to the class
or category of transferable posts from one place to other is not only
an incident, but a condition of service, necessary too in public
interest and efficiency in the public administration.
Further Honble
Court held that the pay to be given on transfer shall not be less than the post on which he holds a lien except in cases where the transfer
is (a) on account of inefficiency or misbehavior or (b) on a written
request the government servant cannot be transferred or except in a
case covered by Rule 49 appointed to officiate in a post carrying less
pay than the pay of the post on which he holds a lien - Appeal was
Allowed.
The issue raised
before the Hon'ble Supreme Court was whether the State as an employer
can fix separate quota of promotion for different educational
qualification holders i.e. degree-holders, diploma-holders and
certificate-holders in exercise of its rule-making power under Article
309 of the Constitution.
Permitting
differential treatment on the basis of educational qualification, Apex
Court held Government was entitled to fix separate quota of promotion
for degree-holders, diploma holders and certificate holders having
regard to the nature of the job and other relevant factors. The Bench
held that classification on the basis of educational qualification is a
reasonable one and satisfies the doctrine of equality as adumbrated in
Article 14 of the Constitution of India.
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