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[No.86]
May 20, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
- Torts: Settlement agreement did
not preclude equitable relief against tobacco companies under RICO.
The existence of a Master Settlement Agreement (MSA) between tobacco
companies and all 50 states and the District of Columbia, settling an action in
which the United States alleged the existence of a 50-year scheme to defraud the
American public as to the harmful nature of tobacco products, did not eliminate
the reasonable likelihood of future Racketeer Influenced and Corrupt
Organizations Act (RICO) violations by the companies, so as to preclude
equitable relief against the companies under RICO. The District Court was not
prepared to accept the assumptions that the companies would comply with the
MSA's terms and that the MSA had adequate enforcement mechanisms in the event of
noncompliance.
U.S. v. Philip Morris USA
- Administrative Practice: Homeowners had to exhaust administrative remedies
before suing to overturn approval of neighboring residence.
An action by homeowners in district court against the Zoning Department, the
Building Department, and others, to challenge the approval of the construction
of a neighboring residence, was subject to dismissal for lack of subject matter
jurisdiction, based on the failure to exhaust the two administrative remedies
that were available. The homeowners had an administrative remedy available to
challenge the Zoning Department's decision to give its approval for the issuance
of the certificate of occupancy to the neighboring residence, as well as an
administrative remedy to challenge the Building Department's decision to issue
the certificate of occupancy.
Egle v. City and County of Denver
- Bankruptcy: Securities Act's anti-removal provision does not preclude
removal of individual actions "related to" bankruptcy cases.
Addressing an issue of apparent first impression for the courts of appeals,
the Second Circuit has ruled that the Securities Act's anti-removal provision,
does not preclude the removal of individual actions that are "related
to" a bankruptcy case. Thus, the Court of Appeals affirmed the district
court's decision to assert jurisdiction over pension funds' individual
Securities Act claims against the Chapter 11 debtor's officers and directors,
despite the conflict between the subject statutes.
California Public Employees' Retirement Systems v. WorldCom, Inc.
- Civil Rights: Statute governing termination of parental rights in context
of adoption proceedings violated state right to equal protection.
A statute governing the involuntary termination of parental rights in the
context of adoption proceedings that did not grant an indigent mother the right
to counsel at public expense which was otherwise afforded to indigent parents
whose rights are subject to termination in an action brought by the State
violated the state constitutional right to equal protection. Even though the
petitioner in the adoption proceedings was a private party, in this case, the
child's father, rather than the State, the State would still play a very active
role in the termination of parental rights in the adoption proceedings by
exercising its exclusive authority to terminate the mother's parental rights.
In re S.A.J.B.
- Civil Rights: Pawn shop statutes violated pawn shop's right to procedural
due process.
The Arkansas Supreme Court has held that the pawn shop statutes erroneously
deprived a pawn shop of a property interest without a pre-deprivation hearing
before a court of law, and, as such, were unconstitutional as applied to the
pawn shop, in an action brought by a jewelry owner against the pawn shop,
seeking return of jewelry that had been pawned by an employee of the owner's
housekeeper. The risk of the erroneous deprivation of the property and the
benefits that would accrue from additional judicial safeguards afforded to the
pawn shop substantially outweighed the resulting burden on the judiciary.
Landers v. Jameson
- Civil Rights: Forced disclosure of church documents sought in prosecution
of accused priest was not unconstitutional.
The enforcement of the Commonwealth's subpoena duces tecum, which sought
documents from the Jesuits regarding a priest of that order who was facing
criminal prosecution for sexual assault, did not violate the free exercise
clauses of the state or federal constitutions. The Commonwealth's interest in
prosecuting a priest accused of sexually assaulting students under his authority
outweighed any burden on religious exercise. Moreover, enforcement of the
subpoena did not constitute improper establishment of religion and did not
improperly infringe on the rights of freedom of worship or association.
The Society of Jesus of New England v. Com.
- Criminal Justice: Third degree assault statute was not unconstitutionally
vague.
The third degree assault statute under which defendant was convicted was not
unconstitutionally vague on the ground that it incorporated the definition of
"bodily injury" to include "any impairment of mental
condition." The Colorado Supreme Court had implicitly approved the language
at issue when it rejected a vagueness challenge in a previous case that was
directed at the entire definition of "bodily injury."
People v. Goldfuss
- Criminal Justice: Warrantless search of defendant's home in response to
open line 9-1-1 call was justified under emergency aid doctrine.
A warrantless search of a defendant's home by a police officer responding to
an open line 9-1-1 call that was generated from his home was justified under the
emergency aid exception to the warrant requirement. The Supreme Court rejected
the State's recommendation that it rule, as a matter of law, that the receipt of
an open line 9-1-1 alone authorizes a warrantless search of a residence, but
also rejected the defendant's assertion that such a call, followed by call-backs
by the 9-1-1 dispatcher that elicit only busy signals and a visit to the home by
the police whose knock goes unanswered will never justify a warrantless entry.
Rather, the Court held that each case must be decided based on a totality of the
circumstances test, with the rebuttable presumption that a 9-1-1 call
constitutes an emergency which may require a warrantless entry to render
potentially life-saving assistance to a person who may be incapacitated.
State v. Frankel
- Criminal Justice: Mitochondrial DNA evidence was admissible.
A district court did not abuse its discretion in admitting expert testimony
that less than 1% of population would be expected to have the mitochondrial
deoxyribonucleic acid (mtDNA) pattern found in a hair recovered from a crime
scene. Although mtDNA is not as precise an identifier as nuclear DNA, it can be
obtained from some sources where nuclear DNA cannot. Any issues going to the
conduct of the tests were fully developed and subject to cross examination.
Testing in the instant case was sufficiently reliable. Furthermore, the
mathematical basis for the evidentiary power of the mtDNA evidence was carefully
explained. The Sixth Circuit had not previously considered this issue.
U.S. v. Beverly
- Immigration: State authorities would be notified of alien's intention to
return daughters to face female genital mutilation.
An alien was not eligible for derivative asylum based on the likelihood that
her 13-year-old twin daughters would be subjected to %n%nfemale genital
mutilation (FGM) if they returned to Nigeria. Her removal would not result in
her daughters being subjected to constructive deportation, since the daughters
were legal permanent residents of the United States, as was their father. The
Court of Appeals noted, however, that the alien had stated that, if removed, she
would allow the daughters to be removed with her to Nigeria rather than arrange
for them to stay with their father. In response, the Court of Appeals directed
that a copy of its opinion be sent to the Illinois Department of Children and
Family Services and an Illinois State's Attorney for proceedings under the
Juvenile Court Act. The Court assumed that the state authorities would assess
and assert the daughters' rights under the International Child Abduction
Remedies Act and the Hague Convention.
Olowo v. Ashcroft
- Estate Planning and Probate: Will contest did not stay accrual of interest
on pecuniary devises.
A will contest did not stay the accrual of interest on the pecuniary devises,
and thus, the interest accrued from the date of the testator's death, pursuant
to the terms of the will, even though the property was not valued by the court
until after the testator's will was admitted to probate. The applicable statute
specifically provided that general pecuniary devises bear interest beginning one
year after the first appointment of a personal representative, "unless a
contrary intent is indicated by the will." In this case, the will clearly
indicated a "contrary intent" because it provided that the first of
fifteen annual payments with interest to the devisees was to begin one year from
the date of the testator's death.
In re Estate of Holan
- Judicial Administration: Suspension rather than disbarment was appropriate
sanction for attorney who misappropriated funds.
Sufficient facts in mitigation were established to make suspension from the
practice of law for one year and one day, rather than disbarment, the
appropriate sanction in attorney discipline proceedings after the attorney
admitted that he violated the Rules of Professional Conduct by disbursing funds
to his dissolution-of-marriage client and to himself in the amount of his
attorney fees, in a manner not in accordance with the terms of the separation
agreement adopted by the court. The attorney recognized his ethical violations,
accepted responsibility for injuries he caused, expressed remorse, attempted to
make whole the injured parties by accepting personal responsibility for all
debts that were the subject of the separation agreement, and presented
considerable evidence of other mitigation, including his excellent reputation in
the profession.
In re Fischer
- E-commerce: E-mail messages did not create binding real estate sale
agreement.
A typed signature at the bottom of a vendor's e-mail satisfied the
requirement of a writing, subscribed by the party to be charged therewith, under
the general Statute of Frauds. The vendor's act of typing his name at the bottom
of the e-mail manifested his intent to authenticate the transmission. However,
the e-mail messages that were exchanged did not create a binding agreement as
they lacked a vital term. The e-mails did not set forth any understanding as to
the amount of the contract deposit or indicate how the parties intended to treat
a commercial lease encumbering the premises.
Rosenfeld v. Zerneck
- Maritime Law: Employees entitled to federal maritime workers' compensation
were barred from bringing state law claims.
Maritime employees who developed lung cancer from asbestos exposure in the
course of their employment could not state a claim for compensation under the
Washington Industrial Insurance Act, inasmuch as they were entitled to
compensation uder the federal Longshore and Harbor Workers' Compensation Act (LHWCA).
Washington law expressly prohibited employees from asserting state claims when
they are entitled to federal maritime workers' compensation.
Gorman v. Garlock, Inc.
News
Supreme Court Justices Sandra
Day O'Connor and Anthony M. Kennedy have very strongly recommended that Iraqis
alone must determine the right way to mete out justice to the country's former
leaders. Expressing concern over the photographs of American soldiers
mistreating Iraqi prisoners, they refused to comment directly about abuse
allegations because any punishment of U.S. personnel might be appealed to the
high court.
Chicago Supreme Court Justice
John Paul Stevens in one of his opinions has said that he believes the death
penalty is constitutional, however, the country would be better off without it.
Steven's comments appear to be the most pronounced statement a Supreme Court
justice has made against the death penalty in years. He has raised objections to
the death penalty before, but mostly in written opinions. He called the death
penalty as "an unfortunate part” of their judicial system. The high court
ruled the death penalty unconstitutional in 1972, then reinstated it in 1976.
Stevens, the court's oldest member, joined in 1975.
Despite facing a boycott by the
country's main pro-democracy party, Burma's military government has opened talks
on a new constitution. However, the National League for Democracy opted out of
the talks as its leader, Aung San Suu Kyi, is under house arrest. Burma, also
known as Myanmar, has been criticised by the United States and the European
Union over its human rights record and the continued detention of Aung San Suu
Kyi and other opposition members.
The country’s top financial
regulators in an attempt to enhance credit culture, have said that China's banks
should sue the firms and people whose bad debts are destabilising the banking
system. According to international credit rating agency Standard & Poor's,
non-performing loans at the four big state banks - between them holding 80% of
loans - could amount to more than 40% of the overall loan book. Most of the
defaulting debtors are state firms - and some are senior individuals in China's
hierarchy and their families.
Leaders of the movie industry
in Cannes have appealed to directors and actors to sign up to their anti-piracy
message before piracy wrecks the film business. Executives from Hollywood,
France, India, China, and Russia held an "unprecedented" meeting to
discuss on the issue and emphasized on the need of the directors to be involved
in the campaign as they are the major victims of piracy.
Hundreds of health staff have
marched through the Bulgarian capital Sofia and other cities to protest against
Libya's controversial HIV court verdict in which five Bulgarian nurses and a
Palestinian doctor have been sentenced to death for deliberately infecting
around 400 children with HIV. It is apprehended by the critics that the Libyans
extracted confessions using torture and the case has raised concern worldwide.
In order to reserve seats for
women, the Bangladeshi parliament has amended its constitution to reserve 45
seats for women. With this amendment, the women-only seats will raise the total
number of MPs to 345 and will be selected in proportion to each party's support
at the last election.
European Union foreign
ministers will try to make headway on agreeing the proposed new constitution.
Last December an attempt to reach consensus broke down because of objections
from Spain and Poland over voting rights. British Foreign Secretary Jack Straw
will demand that vetoes on taxation, foreign policy and defence remain. The
negotiations begin with a two-day meeting of EU foreign ministers in Brussels.
The government says the constitution would just be a rationalisation of the EU's
existing 80,000 pages of rules and regulations.
A protest took place outside
Durham Prison over the growing number of deaths among women in jail. In 2003,
some 14 women prisoners died while in jail. And this year, so far, seven women
have taken their own lives. Sharon Miller, from Somerset, was the latest woman
inmate to be found hanging in her cell at Durham on 8 May. Durham Prison has
refused to comment on the demonstration, but said it was taking steps to reduce
prison suicides.
Tighter licensing laws aimed at
promoting sensible drinking and sale of alcohol have been unveiled by Justice
Minister Cathy Jamieson. The minister promised tough action against those who
flout the new measures in the Scottish Executive's white paper on liquor
licensing. Tighter monitoring of licence conditions as part of the modernisation
of alcohol legislation have been emphasized by her.
Although new laws on a duty to
manage asbestos come into force, however, it has been discovered by a BBC Wales
investigation that most councils in Wales are not ready for the new regulations.
Only three Welsh councils surveyed said they would be in a position to comply
fully with the new asbestos legislation. Although asbestos is no longer used as
a building material, there is a massive legacy of the material remaining in
public buildings, including schools, libraries, offices and factories across
Wales. The step has been taken in view of the fact that as electricians and
other workers modernise buildings, they run the risk of unwittingly drilling or
sawing into asbestos panels.
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SEBI
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Primary Market
Department
Circular No MIRSD/DPS-2/MB/Cir-02/8859/04
Dated 07.05.2004 : A Standard format of the letter of offer along with the
general instructions/guidelines has been prepared and the merchant bankers have
been advised to follow the said format while preparing the draft letter of
offers and to ensure filing the same in terms of regulation 8 (4) of the SEBI
(Buy Back of Securities) Regulations, 1998.
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CBDT
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Circular No. 4/2004 Dated
13.05.2004 : It has been clarified that tax is required to be deducted at source
under section 193 or section 195 of the Income TAx Act, 1961, as the case may
be, only at the time of redemption of such bonds, irrespective of whether the
income from the bonds has been declared by the bond-holder on accrual basis from
year to year or is declared only in the year of redemption. It has been further
clarified that a person, who has declared the income from a Deep Discount Bond
on annual accrual basis during the term of the bond, will be entitled to make an
application under section 197 of the Income-tax Act, requesting the Assessing
Officer to issue a certificate for no deduction of tax or deduction at a lower
rate. In such a case, the assessee should furnish, along with the prescribed
Form No. 13, details of the income offered for tax by him from year to year. .
In case the assessee is not the original subscriber, and has acquired the bonds
from some other person, he shall furnish the relevant particulars including the
name, address and PAN of such other person. If the Assessing Officer is
satisfied that the applicant assessee, has declared his income from the bonds
from year to year on accrual basis during the period the bond was held by him,
he shall issue a certificate allowing the tax deduction at source at such
reduced rate as is justified by the total income of the applicant in the year of
redemption.
Notification No. 144/2004 Dated
13.05.2004 : The Central Government has specified the New Jeevan Akshay-II Plan
of the Life Insurance Corporation of India, as filed by the Corporation with the
Insurance Regulatory and Development Authority, as the annuity plan of the Life
Insurance Corporation of India for the purposes of the section 88(2)(xiiia) of
Income tax Act, 1961, by which now the sum in said plan will qualify for the
rebate purposes.
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CBEC Excise Tariff
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Circular No. 785/18/2004/CX
Dated 17.05.2004 : The Board has examined the doubts arisen over application of
sub-rule (1), (2) and (3) of rule 6 of CENVAT Credit Rules, 2002 relating to the
clearances of excisable goods made by the supplier under notification No.
43/2001-CE (NT) wherein it was mentioned about procurement of excisable goods
without payment of duty for the purpose of use in manufacture or processing of
export goods and their exportation out of India subject to the conditions,
safeguards and procedures. The Board has clarified that provisions of sub-rule
(1), (2) and (3) are applicable to those manufacturers who manufacture both
dutiable and exempted goods. Since notification No. 43/2001-CE (NT) has been
issued under rule 19 of Central Excise Rules, 2002 which only prescribes
conditions, safeguards and procedures, the goods procured under this
notification does not attract the provisions of sub-rule (1), (2) and (3) of
rule 6 of CENVAT Credit Rules, 2002. It has been clarified further that the
exporter cannot claim Drawback in case any of the inputs has been obtained
without payment of duty except to the extent and in the manner explicitly
permitted under Customs and Central Excise Duties Drawback Rules, 1995.
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CBEC Customs Tariff
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Circular No. 33/2004 Dated
12.05.2004 : Chapter XA of the Customs Act, 1962, containing the Special
Provisions Relating To Special Economic Zone, has been made effective from
11-05-2004. The impact of the same has been made on Special Economic Zone Rules,
2003, and Special Economic Zone (Customs Procedure) Regulations, 2003. The said
rules & regulations were notified earlier on 22.07.2003 but these have also
been made effective from the 11.05.2004.
Circular No. 32/2004 Dated
11.05.2004 : It has been clarified that the actual high-seas-sale-contract price
paid by the last buyer would constitute the transaction value under Rule 4 of
Customs Valuation Rules, 1988 and inclusion of commission on notional basis may
not be appropriate. However, the responsibility to prove that the
high-seas-sales-transaction constituted an international transfer of goods lies
with the importer. The importer would be required to furnish the entire chain of
documents, such as Original Invoice, high-seas-sales-contract, details of
service charges/commission paid etc, to establish a link between the first
international transfer of goods to the last transaction.
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CBEC Customs Non Tariff
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Notification No. 67/2004-N.T.
Dated 17.05.2004 : The CBEC has appointed the Commissioner of Customs (Imports),
Air Cargo Complex, Sahar, Mumbai to act as Commissioner of Customs, Chennai
Airport and Air cargo, Chennai and Commissioner of Customs, Air Cargo-Import and
General, New Delhi for the purpose of adjudicating the matters relating to Show
Cause Notice pertaining to M/s. United Racing & Bloodstock Breeders Ltd,
Bangalore, 1/1, Vittal Mallya Road, Bangalore issued vide File No. DRI/BZU/E/3/2003,
dated the 13th February, 2004, by the Additional Director General, Directorate
of Revenue Intelligence, Mumbai Zonal Unit, Mumbai.
Notification No. 66/2004-N.T.
Dated 17.05.2004 : The CBEC has appointed the Commissioner of Customs (Imports),
Jawahar Custom House, Nhava Sheva, Mumbai to act as Commissioner of Customs
(Exports), New Custom House, Mumbai for the purpose of adjudicating the matters
relating to Show Cause Notice pertaining to M/s. Shree Rajshri Plastics,
B-30/32, Sarvonnati Society, Kirol Road, Ghatkopar (West), Mumbai - 400086
issued vide File No. DRI/BZU/F/03/2003/Pt.I/1108, dated the 12th February, 2004
by the Additional Director General, Directorate of Revenue Intelligence, Ist
Floor, Construction House, Walchand Hirachand Marg, Ballard Estate, Mumbai-
400038.
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Service Tax
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Circular No. 79/9/2004 Dated
13.05.2004 : It has been clarified that charges for erection, installation &
commissioning are not covered under the category of Consulting Engineer
Services. Commissioning or Installation service will be separately taxable under
relevant entry and are not chargeable under Consulting Engineer Services.
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RBI
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Circular No. DBOD.No.Leg.BC.84
/09.07.005/2003-04 Dated 15.05.2004 : RBI has instucted the banks not open
current accounts of entities which enjoy credit facilities (fund based or
non-fund based) from the banking system without specifically obtaining a
No-Objection Certificate from the lending bank(s). RBI considers this condition
essential in the interests of overall credit discipline. Banks have also been
advised to note that non-adherence to the above discipline could be perceived to
be abetting the siphoning of funds and such violations which are either reported
to RBI or noticed during our inspection would make the concerned banks liable
for penalty under Banking Regulation Act, 1949.
Circular No. DBOD.AML.BC.NO.83/
14.01.001/ 2003-2004 Dated 12.05.2004 : The Committee on Procedures and
Performances Audit on Public Services (Chairman: Shri S.S.Tarapore) has observed
that the information collected from the customer under Know Your Customer "
(KYC) compliance while opening the account is being used for cross selling of
services of various products by banks, their subsidiaries and affiliates.
Sometimes, such information is also provided to other agencies. As banks are
aware, the information provided by the customer for KYC compliance while opening
an account is confidential and divulging any details thereof for cross selling
or any other purpose would be in breach of customer confidentiality obligations.
Banks have been advised to instruct all the branches to strictly ensure
compliance with their obligations to the customer in this regard.
Circular No. DNBS (PD) CC No.
37 / 02.02 / 2003-04 Dated 17.05.2004 : NBFCs including RNBCs are required to
maintain liquid assets in the form of Government securities/ Government
guaranteed bonds as per the provisions of Section 45-IB of the RBI Act and lodge
such securities for safe custody with a scheduled commercial bank (SCB) / Stock
Holding Corporation of India Ltd., (SHCIL) or keep them in the form of
Constituent's Subsidiary General Account (CSGL) or with a depository through a
depository participant (DP) registered with Securities & Exchange Board of
India (SEBI) in a demat account. However, there has been observed few Government
securities/Government guaranteed bonds that have not been dematerialized and are
held in physical form which for the purpose of collection of interest are
withdrawn from the safe custody with their designated bankers and re-deposited
with the banks after collection of interest. To avoid the process of withdrawal
and re-depositing the same it has now been decided that NBFCs/RNBCs shall
authorize the designated banks as agents for collection of interest on due dates
on these securities held in physical form and lodged for safe custody. NBFCs
including RNBCs have been advised to exercise a Power of Attorney in favour of
the designated bank to enable it to collect interest on the securities/
guaranteed bonds held in physical form on the due date.
Circular No. DBS. CO. OSMOS
.BC/11 / 33.01.029 / 2003-04 Dated 30.04.2004 : The study has revealed that the
banks, by and large, have put in place a mechanism for conducting IS/EDP audit,
the practices differ from bank to bank depending upon the level of adoption of
technology. Further, many banks are in the process of implementing IS audit
system in place of computer/ EDP audit. In this backdrop, RBI has advised that :
i) The banks may adopt an IS
audit policy (if not done already) appropriate to its level of computerisation
and review the same at regular intervals in tune with the industry best
practices and guidelines issued by RBI from time to time
ii) Banks may adopt appropriate
system and practices for conducting IS audit on annual basis covering all the
critically important branches (in terms of nature and volume of business)
iii) Such audits should be
preferably undertaken prior to the statutory audit so that the IS audit reports
are available to the statutory auditors well in time for examination and
incorporating comments, if any, in the audit reports
iv) The IS audit reports should
be placed before the top management and the compliance should be ensured within
the time frame as outlined in the audit policy.
Press Release No.
2003-2004/1343 Dated 18.05.2004 : On the recommendation made by the Task Force
constituted for monitoring developments in the financial markets, it has been
decided to restore, with immediate effect, the status quo ante on margins that
banks have to maintain for financing against shares/IPOs/issue of guarantees.
The margins will now be 40 per cent against the earlier 50 per cent.
Furthermore, the minimum cash margin of 25 per cent (within the margin of 50 per
cent) stands reduced to 20 per cent.
Press Release No.
2003-2004/1341 Dated 18.05.2004 : RBI Governor has announced the monetary and
credit policy statement for 2004-2005. The Statement follows the pattern already
set in the previous years. Broadly, the Statement covered a review of
macroeconomic and monetary developments with several analytical and structural
issues concerning financial sector and monetary policy. It delineated and
elaborated on various areas in which RBI has been taking measures from time to
time and provided a focus on broad policies that are intended to be pursued for
the year 2004-05, while retaining the flexibility to take specific measures
promptly and effectively as the evolving circumstances warrant. The Governor
announced a number of measures for strengthening the financial system, improving
the credit delivery mechanism and indicated measures addressing institutional
improvements to support growth consistent with stability in a medium-term
perspective. He also underscored the need to deepen the consultative process to
achieve further social good.
Press Release No.
2003-2004/1340 Dated 17.05.2004 : The rate of interest on the Floating Rate
Bonds, 2014 (FRB, 2014) applicable for the half-year (May 20, 2004 to May 19,
2005) shall be 4.59 per cent per annum. The variable base rate for payment of
interest shall be average rate (rounded off up to two decimal places) of the
implicit yields at cut-off prices of the last three auctions of Government of
India 364-day Treasury Bills held up May 19. The variable base rate based on the
average rate of the implicit yields at cut-off prices of the said last three
auctions of Government of India 364-day Treasury Bills worked out to be 4.45 per
cent.
Press Release No.
2003-2004/1339 Dated 17.05.2004 : The rate of interest on the Floating Rate
Bonds, 2006 (FRB, 2006) applicable for the half-year May 22, 2004 to November
21, 2004 shall be 4.37 per cent per annum. The variable base rate for payment of
interest shall be average rate (rounded off up to two decimal places) of the
implicit yields at cut-off prices of the last six auctions of Government of
India 364-day Treasury Bills held up to the commencement of the respective
half-yearly coupon period. The variable base rate based on the average rate of
the implicit yields at cut-off prices of the last six auctions of Government of
India 364-day Treasury Bills worked out to be 4.42 per cent.
Press Release No.
2003-2004/1325 Dated 13.05.2004 : On the recommendations of the Reserve Bank of
India, the Government of India has issued an Order of Moratorium in respect of
the South Gujarat Local Area Bank Ltd., Navsari, Gujarat. The moratorium will
remain in force from the close of business on May 13, 2004 up to and inclusive
of August 12, 2004. During the period of moratorium, the bank is permitted to
make only payments as have been specified in this regard in the Order of
Moratorium.
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Department of Commerce
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Notification No.
14/30/2002-DGAD Dated 27.04.2004 :Final Findings has been published in the
official gazette in New Shipper Review of Anti-dumping Duty Imposed on Imports
of Lead Acid Batteries Requested by M/s. Yuasa Battery Guangdong Co. Ltd. China
PR
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Ministry of Environment and
Forest
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Notification No. GSR261(E)
Dated 15.04.2004 : The Central government has framed the Biological Diversity
Rules, 2004 to set out a provisions for appointment of chairperson for National
Biodiversity Authority. Moreover the said rules provides the provisions for Pay
& allowances to the chairperson. The rules describes that the said authority
shall meet at least four times in a year normally after a period of three months
at the Head quarters of the Authority or at such place as may be decided by the
Chairperson
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Press Information Bureau
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Dated 14.05.2004 : Shri Lakshmi
Chand, Secretary, Department of Industrial Policy & Promotion, Ministry of
Commerce & industry, launched the Indian Boiler Regulations, 1950 with up to
date amendments for use by the industry. The Indian Boilers Act was enacted in
1923 to provide mainly for safety of life and property from the danger of
explosion of boilers and for achieving uniformity in registration and inspection
during operation and maintenance of boilers throughout the country. The Indian
Boiler Regulations provides the standards in respect of materials, design and
construction, inspection and testing of boilers and boiler components for
compliance by the manufacturers and users of boilers. These regulations are
statutory in nature and are mandatory for the users of boilers in India.
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Supreme Court |
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The main issue to be
settled in the matter was whether internet domain names are subject to
the legal norms applicable to other intellectual properties such as
trade marks?
The Hon’ble Supreme
Court taking all the necessary precautions held that the use of the same
or similar domain name may lead to a diversion of users which could
result from such users mistakenly accessing one domain name instead of
another. Such users could well conclude that the first domain name owner
had mis-represented its goods or services through its promotional
activities and the first domain owner would thereby lose its custom.
Hence, it was held that a domain name might have all the characteristics
of a trademark and could find an action for passing off. It was further
held that although the operation of the Trade Marks Act, 1999 itself is
not extra territorial and may not allow for adequate protection of
domain names, this does not mean that domain names are not to be legally
protected to the extent possible under the laws relating to passing off.
The introduction of
"Jyotir Vigyan", (science of astrology) as a course of study
by the University Grants Commission was the subject matter of challenge
in the present appeal.
The contention of the
Respondent was that the course in Vedic Astrology could not be termed as
a course of scientific study as astrology had never been regarded as a
science. That apart science is international and if and when differences
of opinion arise, scientists all over the world work honestly and
diligently to resolve them. The Hon’ble Supreme Court while dealing
with matter opined that astrology is a science which claims to foretell
the future or make predictions by studying the supposed influence of the
relative positions of the moon, sun, planets and other stars on human
affairs. It, therefore, requires study of celestial bodies, of their
positions, magnitudes, motions, and distances, etc. Astronomy is a pure
science. Since Astrology is partly based upon study of movement of sun,
earth, planets and other celestial bodies, it is a study of science at
least to some extent.
The precise question as
to whether Jyotir Vigyan should be included as a course of study having
been considered and examined by an Expert Body of UGC and they having
recommended for including the said course for study and award of degree
in universities, the Court did not find it proper to interfere with the
aforesaid decision specially when no violation of any statutory
provisions was demonstrated. Hence, the appeal was dismissed.
In this matter, the
main issue to be decided before the Hon’ble Supreme Court was whether
erection of mudgunds and tap hole drilling machine at the site of the
Bhilai Steel Plant would result in erection of immovable property and
not goods resulting into levying no excise duty thereon.
The Court held that it
had no doubt in its mind that the mudguns and the drilling machines
erected at site by the appellant on a specially made concrete platform
at a level of 25 feet above the ground on a base plate secured to the
concrete platform, brought into existence not excisable goods but
immovable property which could not be shifted without first dismantling
it and then re-erecting it at another site Taking the process involved
and the manner in which the equipments were assembled and erected
alongwith volumes of the machines concerned and their weight into
consideration and having regard to the nature of structure erected for
basing these machines, it held that what ultimately emerged as a result
of processes undertaken and erections done could not be described as
"goods" within the meaning of the Excise Act and exigible to
excise duty. Hence, the appeal was allowed. |
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High Courts |
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Madras
- P.N. Peruvazhuthi, S/o Narayanasamy Vs
The Registrar, Pondicherry University
The Court held that High Court
had no jurisdiction to interfere with the internal working of the academic
institution and to relax the rules where the academic body applies the rules in
a bona fide manner to all the candidates equally. Educationalists are required
to maintain the standard of education and education system, therefore court
should be slow in interfering these matters.
- R. Babu and Anr Vs. TTK LIG Ltd., formerly
London Rubber Co. (India) Ltd., by its President (Operation)
The court followed the
precedent and held that no injunction could be granted against an employee after
the termination of employment, restraining him from carrying on a competitive
trade. The court further held that law declared by Supreme Court bench
consisting of three judges in which two judges did not express their view and
one judge laid down the proposition of law would be binding on all the courts
within the territory of India.
Jharkhand
- Oriental Fire and General Insurance Co. Ltd. Vs.
Smt. Uma Mehra & Ors.
The Court held that Insurance
Company should have filed a copy of policy and brought the policy on records by
examining the witnesses to prove its limited liability. The court further held
that the insurance Company has remedy to recover the amount from the owner of
vehicle or from any other person liable to pay the amount if the liability of
the company is limited and it has paid the full amount to the claimant.
Delhi
- Hindustan Prefab Ltd. Vs. M/s Dosajh & Co.
& Anr
The court held that the
evidence before the Arbitrator need not be as per the Evidence act so long as
there was some material before him which would constitute evidence that can be
taken into account by Arbitrator.
CESTAT
- Zee Telefilms Ltd. & Star India Pvt. Ltd.
Vs. CCE
The Court held that the activity of selling of
time slot for broadcasting of any programme or obtaining sponsorships for
programme or collecting broadcasting charges by the branch
office/representative/agent in India of a broadcasting agency or organization,
having its head office situated in any place outside India, would come within
the purview of taxable service and liable for service tax. The court further
held that tax would be payable on the entire amount paid by advertiser to the
branch office/ agent in India, not only on commission received by branch
office/agent from the broadcasting organization.
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