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[No.98]
September 20, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
Separate convictions for armed robbery and bank
robbery that arose from the same criminal transaction did not violate the
prohibition against double jeopardy under either the federal or state
constitutions. The focuses of the armed robbery and bank robbery statutes were
different, in that the armed robbery statute sought to protect the person
assaulted, while the bank robbery statute's focus was on the bank, vault or
safe. Furthermore, under the Blockburger "same elements" test, armed
robbery did not require proof that the defendant intended to steal money or
property from a bank, safe or vault, while bank robbery did not require proof of
use of a dangerous weapon or an item that would lead a person to believe it to
be a dangerous weapon.
People v. Ford
A homebuilding company was aware of the alleged
protected activity of its director of marketing, in the form of numerous
complaints to her supervisors of alleged overpayments and kickbacks, as required
for a Sarbanes-Oxley whistleblower claim, even if the sole decisionmaker with
respect to the director's termination was not aware of the complaints.
Furthermore, the two-week temporal proximity between the complaints and the
termination was sufficient to establish circumstances suggesting that the
protected activity was a contributing factor to the termination. These were
matters of first impression, and the director's claims under the 2002 Act were
among the first to reach the federal courts on the merits.
Collins v. Beazer Homes USA, Inc.
The release of a film on DVD constituted a
"republication," rather than a continuous publication. Thus, the DVD
release recommenced the limitations period for defamation claims based on the
film's content. The DVD contained special features not included in the film's
theatrical release, many of which were filmed and produced after the film's
release and contained information related to the film. The film's release on DVD
was intended to reach a new audience.
Nichols v. Moore
The federal Immigration Reform and Control Act
of 1986 (IRCA), which prohibits the knowing hiring of illegal aliens, and the
use of fraudulent documents to obtain employment, did not preempt state workers'
compensation law. Thus, a workers' compensation claimant, who was an illegal
alien, fell within the Workers' Compensation Act's broad definition of
"employee," and was not disqualified by her status as an illegal alien
from receiving workers' compensation benefits. The IRCA, and its accompanying
regulations, did not purport to intrude into the area of what protections a
state may afford aliens.
Continental PET Technologies, Inc. v. Palacias
A city ordinance requiring licensing of
sexually oriented businesses was a valid time, place and manner restriction on
speech protected by the First Amendment. The statute was narrowly tailored to
deal with adequately documented secondary effects on a neighborhood resulting
from adult businesses. Alternate communications channels were left open as there
were no restrictions on what items could be sold. Moreover, the only burdens
imposed were a 10 a.m. to 11 p.m. hours limitation, outside lighting
requirements, and the need to police a loitering ban.
Doctor John's, Inc. v. City of Roy, Utah
A harassment statute making it a crime to make
a telephone call, whether or not a conversation ensues, with the purpose to
annoy or alarm, was held to be unconstitutionally overbroad. The statute
encompassed too large an area of protected speech, and there existed a real
likelihood that the statute might discourage citizens from exercising that
protected speech.
State v. Brobst
An alien's California conviction for
methamphetamine possession was not an aggravated felony warranting removal. It
would not be punishable as a felony under the Controlled Substances Act (CSA),
inasmuch as the maximum penalty under the CSA for possession of a generic
controlled substance was one year. Nor did it contain a trafficking element.
Even if it contained a trafficking element or would be punishable as a felony
under the CSA, it still would not be an aggravated felony for immigration
purposes since. Even though the statute of conviction allowed for a maximum
penalty of more than one year, the offense was a "wobbler" offense.
Thus, once the state court sentenced the alien to a county jail rather than a
state prison, the offense automatically converted from a felony into a
misdemeanor for all purposes.
Ferreira v. Ashcroft
A country club membership that could not be
converted into a monetary amount was not property, and so could not be marital
property subject to equitable division. The membership was a non-equity
membership that could not be sold, transferred, exchanged, redeemed, inherited,
or liquidated in any way.
Solomon v. Solomon
News
An international conference on
female genital mutilation has ended in Kenya with a fresh call to ban the
practice. The Campaigners have urged more countries to ratify the Protocol on
the Rights of Women in Africa adopted in July 2003 which says that women should
be protected from harmful customs. So far, it has been ratified by just three
states, Rwanda, Libya and Comoros. Activists say 90 million African women are
victims of female circumcision and other forms of genital mutilation. It is said
that the alleged practice is an assault on the human dignity and has no
religious basis.
In a first such case of its
kind, a Kenyan woman, who says she was sacked for being HIV-positive, has won
the right to sue for alleged discrimination in the High Court. The waitress
worked for a catering firm for eight years, before allegedly being dismissed due
to her HIV status. She has also claimed compensation from the doctor and the
hospital which allegedly revealed her test result without her consent.
A Catholic priest accused of
taking part in the 1994 Rwandan genocide is due to go on trial at the UN war
crimes tribunal in Tanzania. The priest named, Athanase Seromba is the first
Catholic priest to appear before the tribunal, set up after the slaughter of
some 800,000 ethnic Tutsis and moderate Hutus on the charges of organising the
massacre of more than 2,000 Tutsis at a church in the west of Rwanda. The priest
however has denied all the charges leveled against him.
Michael Jackson has made an
appearance in court in California to face the mother of the boy accusing him of
sexual abuse and has given evidence in a pre-trial hearing. His lawyers has
asked for some evidence against him to be ruled out. Jackson denies all the 10
child molestation charges leveled against him.
The New Zealand’s High Court
has outrightly thrown out a planned tie-up between Australia's Qantas and Air
New Zealand. The ruling ends a two-year effort by the airlines to fight off
low-cost carriers by combining forces. The deal has been rejected by both
countries’ competition watchdogs had rejected the deal on the basis that the
reduction in consumer choice had outweighed the benefits.
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CBEC Excise non Tariff
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Notification No: 24/2004
NT Dated 17.09.2004: The Central
Government vide Notification No: 24/2004 NT Dated 17.09.2004 notifies the CENVAT
Credit (Amendment) Rules, 2004. The
CENVAT Credit (Amendment) Rules, 2004 amends the CENVAT Credit Rules,
2004 and shall be effective from the date of its publication in the Official
Gazette.
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Service Tax
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Notification
No: 17/2004 Dated
10.09.2004: The
Central Government vide the above notification notifies the exemption of taxable
service provided by the holder of intellectual property right to any person in
relation to intellectual property service from service tax
leviable equivalent to the amount of cess paid towards the import of
technology under the provisions of section 3 of the Research and Development
Cess Act, 1986 in relation to such intellectual property service
under section 66 of the Finance Act, 1994
Notification
No: 13/2004 Dated
10.09.2004: In
exercise of the powers conferred by sub-section (1) of section 93 of the Finance
Act, 1994 (32 of 1994), the Central Government vide the above notification
notifies the exemption of taxable service provided by a banking company or a
financial institution including a non-banking financial company or any other
body corporate or commercial concern to the Government of India or the
Government of a State in relation to collection of any duties or taxes levied by
the Government of India or the Government of a State from the whole of the
service tax leviable under section 66 of the Finance Act, 1994.
Notification
No: 28/2004 Dated
17.09.2004: Vide the above
notification, the Central Government notifies the exemption
of taxable service provided by an aircraft operator to any person in relation to
transport of export cargo by aircraft from the whole of the service tax leviable
under section 66 of the Finance Act, 1994.
Notification
No: 16/2004 Dated
10.09.2004: The Central Government vide the above notification notifies the
exemption of taxable service
provided to a client in respect of Enterprise Resource Planning software system
by a management consultant in connection with the management of any organization
in any manner from the whole of service tax leviable under section 66 of the
Finance Act, 1994 (32 of 1994).
Notification
No: 15/2004 Dated
10.09.2004: By virtue of the above
notification, the Central
Government notifies the exemption of taxable service provided by a commercial
concern to any person, in relation to construction service from service tax leviable under section 66 of the Finance Act, 1994
in excess
of the service tax calculated on a value which is equivalent to thirty-three per
cent of the gross amount charged from any person by such commercial concern for
providing the said taxable service. The
exemption shall not be applicable in cases
where –
(i)
the credit of duty paid on inputs or capital goods has been taken under the
provisions of the Cenvat Credit Rules, 2004; or
(ii)
the
commercial concern has availed the benefit under the notification of the
Government of India, in the Ministry of Finance, (Department of Revenue) No.
12/2003-Service Tax, dated the 20th June, 2003 [G.S.R. 503 (E), dated the 20th
June, 2003].
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RBI
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Circular No:
A.P. (DIR
Series) Circular No. 11 Dated 13.09.2004: The
Reserve Bank of India vide FEMA Notification 20/2000-RB dated May 3, 2000 had
earlier notified that a person resident outside India (other than a citizen of
Bangladesh or Pakistan or Sri Lanka) or an entity incorporated outside India
(other than an entity in Bangladesh or Pakistan), may purchase shares or
convertible debentures of an Indian company under Foreign Direct Investment
Scheme subject to certain terms and conditions. By virtue of Circular No: A.P.
(DIR Series) Circular No. 11 Dated 13.09.2004 the Reserve Bank of India states
that the Government of India had lifted the restriction imposed on
investment in Indian companies by Sri Lankan citizens. Accordingly, persons
resident outside India (other than a citizen of Bangladesh or Pakistan)
including citizens of Sri Lanka would be eligible to purchase shares or
convertible debentures of an Indian company under Foreign Direct Investment
scheme subject to specified terms and conditions.
Circular No:
DBOD.BL.BC.39/22.01.001/2004-05 Dated 10.09.2004: The Reserve Bank of India vide the above circular states that
it has been decided to allow banks to open branches which will attend
exclusively to data processing, verification and processing of documents,
issuance of cheque books, demand drafts etc. on requests received from other
branches and other functions incidental to banking business having no interface
with customers. Such branches will be issued licence under the 'Service Branch'
category and they can attend to clearing and allied banking activity which may
include processing centres, back office functions and those incidental to
banking business etc but they will not be permitted to have any interface with the customers. The
RBI clarifies that a 'Service Branch' shall not include a call centre or a phone
banking facility or any other facility that involves customer interface and also
that conversion of a service branch into any other category of banking branch
will not be permitted.
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DGFT
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Public
Notice No: 6/2004-09 Dated 17.09.2004: By
virtue of the above public notice, the Director General of Foreign Trade General
notifies the amendment in the Handbook of Procedures (Vol.2), 2002-07 under the
heading “General Note for
Chemicals & Allied Products” regarding import of Penicillin and its salts
(ITC HS Code No.29411010). The public notice states that whenever import of Penicillin
and its saltsis allowed as an input item under Duty Exemption Scheme, the export
obligation period for such licences shall be restricted to six
months from the date of clearance of first import consignment and that the
licensing authority shall make an endorsement in the Advance Licence to this
effect.
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Telecom
Regulatory Authority of India (TRAI)
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Press
Release No.: 57/2004 Dated
09.09.2004: The Telecom Regulatory
Authority of India vide Press Release No.: 57/2004
Dated 09.09.2004 states that the subscriber base for telephony services
continued its growth pattern during August 2004. In the month of August 2004,
around 1.87 million subscribers were added as compared to 1.95 million
subscribers in July 2004. For mobile segment 1.67 million subscribers have been
added during August 2004 as compared to 1.72 million in July 2004.
During
the first five months of current financial year approximately 7.52 million
mobile subscribers have been added, making it a total of 41.12 million mobile
subscribers at the end of August 2004. In the fixed
segment, a total of 0.20 million subscribers were added during August 2004, as
compared to 0.23 million in July 2004. With this the total subscriber base of
fixed lines have reached 43.65 million. The
gross subscribers base consisting of fixed as well as mobile have reached around
85 million resulting into the overall tele-density of around 7.74.
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Press Information Bureau
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Press Release Dated:
17.09.2004: The Press Information
Bureau’s press release dated 17.09.2004 states that the National
Commission for Women has submitted a Draft Bill entitled ‘The Sexual
Harassment of Women at the Work place (Prevention and Redressal) Bill, 2004’
for the consideration of the Government. This bill is in pursuance of the
guidelines given by the Supreme Court in its judgement on August 13, 1997 in the
Vishakha Case where in the Supreme Court had directed that until a legislation is
enacted for the purpose, the guidelines will be treated as the Law under Article
141 of the Constitution and the guidelines and norms would be strictly observed
in all work places for the preservation and enforcement of the right of gender
equality of the working women. The directions would be binding and enforceable
in Law until suitable Legislation was enacted to occupy the field.
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Supreme Court |
- I.T.C. Ltd. v. Commissioner of
Central Excise, New Delhi and Anr.
The appellants were the
manufacturers of cigarettes. But certain excise duty was leviable on
cigarettes under Section 4 of the Central Excise and Salt Act, 1944 at
the rates specified under Tariff Item 4 of the First Schedule to the
Act., prior to 1983.
This case primarily
revolved around the interpretation of two exemption notifications namely
Notification No. 36/83 dated 1.3.1983, Notification No. 201/85 dated
2.9.1985 issued under Rule 8(1) of the Central Excise Rules, 1944 and
Section 3(3) of the Additional Duties of Excise (Goods of Special
Importance) Act 1957. By way of the 1983 notification, the concept of
levying excise duty with reference to the retail sale price of
cigarettes instead of the wholesale price was introduced. The 1985
notification was similar to the earlier notification, except that the
rates of excise duty and the categories of the cigarettes entitled to be
exempted were different.
The main issue in this
case was regarding the excise duty payable by the appellants, for the
manufacture of cigarettes, from 1983 to 1987.
The main contention of
the appellants was that the notification had to be understood in the
light of the provisions of the Standard Weights & Measures Act, 1976
and the Packaged Commodities Rules, 1977 and therefore, the retailer
could not legally sell the cigarettes at a price, which was not in
accordance with the price declared on the package. It was further
submitted that on a plain reading of the notification it was clear that
the sale price was the printed price i.e. the price at which “packages
may be sold in accordance with the declaration”.
On the other hand the
respondent contented that the declaration of price (MRP) was required to
be an honest declaration and that the definition of the sale price in
Explanation III to the notification contemplated that a package would
ordinarily be sold at the price declared and that the sale price
declared or printed would have to have a co-relation with the price at
which such package was likely to be sold. It was further submitted that
the Excise Authorities were entitled to determine the truth of such a
declaration just as they are required to determine the true legal
relation resulting from a transaction if the same is concealed by a
device. It was further submitted that the principle of strict
construction applied only to the charging section in a taxing statute
and not the machinery for assessment, which the notification in this
case provides.
The Supreme Court while
allowing the appeal, set aside the demand for 8. 03 billion rupees as
penalties against evasion of tax.
- Pankaj Gupta & Ors., etc. v. State
of Jammu & Kashmir & Ors.
The appellants were
appointed as Class IV employees by the State of Jammu & Kashmir.
Later these appointments were challenged by the respondent on the ground
that there were no advertisements calling for the applications to fill
these vacancies.
The main contention of
the appellants was that they had been appointed after detailed
discussion on the floor of the Legislative Assembly since a need was
felt for proper representation from the rural masses as compared to
urban candidates in government jobs.
The Supreme Court held that the
appellants may be allowed to continue in service, till regular
recruitments are made and these posts filled up by way of regular
process of appointment. Further they also held that no person can
continue in service especially incases where due process of law had not
been followed for his appointment. |
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High Courts |
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Delhi
- Commissioner of Central Excise,
Ludhiana-III v. Gypsy Advertising Co.
The respondents were
an advertising agency registered under Section 69 of the Finance Act,
1994. Subsequently they let out a portion of the site to M/s. Ogilvy
& Mather Ltd., M/s. Pioneer Publicity Corpn., New Delhi and M/s.
Punjab Advertising Co., Ambala, for the same purpose.
The main issue that
arose in this case was whether sub-letting a portion of the site by the
respondents amounted to providing service under section 68 of the Act.
The definition of the “advertising agency” under section 65(3) of
chapter V of the Finance Act means “any commercial concern engaged in
providing any service connected with the making, preparation, display
or exhibition of advertisement and includes an advertising consultant”.
The CESTAT Court held
that since the respondents were an advertising agency providing space
to other advertising companies in lieu of consideration, therefore they
were providing service by way of sub-letting and hence they were liable
to pay the required service tax, as mentioned under the act.
- Rolls Royce Indus. Power (I) Ltd. v.
Commr. Of C.Ex., Vishakhapatnam
The appellant entered
into an Operation and Maintenance agreement with M/s. Spectrum Power
Generation Ltd., Secunderabad for the Operation and Maintenance of a
208 MW Combined Cycle Power Station owned by M/s. Spectrum Power
Generation Ltd. at Kakinada, Andhra Pradesh.
The main issue in this
case was regarding the amount of service tax payable by the appellants.
The main contention of the appellants was that the agreement was only
for the purposes of Operation and Maintenance of a power plant and not
for rendering any advise. In addition, the help rendered by them was
prior to the coming into force of service tax on consulting engineers.
The CESTAT Court while
allowing the appeal held that service tax was only attracted in cases
involving rendering of services.
- V.S Rahi v. The Lt. Governor, Delhi
& Ors.
The petitioner had
been employed as a Senior Art Teacher along with the respondent No. 3
school. The petitioner retired on attaining the age of superannuation.
Subsequently, an advertisement was issued by the Directorate of
Education stating that the employees of recognized private unaided
schools in Delhi were eligible to have privileges, facilities,
entitlements and rights in accordance with the provisions of the Delhi
School Education Act and the Rules made there under.
The main contention of
the petitioner was that in accordance with Section 10(1) of the Delhi
School Education Act, the employees of recognized schools were entitled
to the same pay, allowances and pensionary benefits as in schools run
by the appropriate authority.
The Delhi High Court
while dismissing the appeal held that the petitioner was not entitled
to the benefits of pension as he had already availed of the benefits of
Contributory Provident Fund Scheme. Further, since there was no pension
scheme applicable to private unaided schools in Delhi, the petitioner
was not entitled to any such pension. The Court also held that benefits
of Contributory Provident Fund Scheme were in the nature of
substitution and not in addition to the pension.
Bombay
- Vasantrao Vishnu Mangore v. State of
Maharashtra
The State Government
decided that the government employees whose age of superannuation was
enhanced from 58 to 60 years would retire at the age of 58. This policy
decision of the State of Maharashtra was challenged by way of this
petition.
The petitioner
contented that such a decision was arbitrary, irrational and violative
of Articles 14 and 19 of the Constitution of India. In addition, since
no reasons had been recorded for the reduction in age, the action was
improper and illegal. They further contented that every citizen of the
country and a resident of the State, had a right to know the reasons
for such a decision of the State Government.
The High Court of
Bombay while dismissing the petition held that such a policy decision
of the State of Maharashtra was not in any way violative of Articles 14
and 19 of the Constitution of India. Therefore the State Government had
the right to reduce the age of superannuation, without recording any
reasons in writing.
Kerela
The petitioner was
appointed as a Binding Assistant with the Kerela Books and Publications
Society. Subsequently a seniority list had been circulated. The
petitioner challenged this seniority list on the ground that her
seniority had not been correctly fixed, by way of a petition under
Article 226 of the Constitution.
The main contention of
the petitioner was that she was entitled to be promoted as a Supervisor
(Binding). But merely on account of the provisions embodied in Section
66(1)(b) of the Factories Act, 1948, providing that “no woman shall
be required or allowed to work in any factory except between the hours
of 6 am and 7pm”, she had been denied promotion to the post of
Supervisor. Further it was contented that such a provision suffers from
the vice of discrimination, and is violative of Articles 14, 15 and 16
of the Constitution, and therefore should be declared as
unconstitutional.
The High Court of Kerela while
dismissing the petitions held that the Factories Act was a piece of
social welfare legislation, which had been enacted primarily with the
object of protecting the workmen employed in factories against
industrial and occupational hazards. Further they held that the
provision of Section 66 (1)(b) embodied a special provision in favour
of women. And therefore does not suffer from any vice of discrimination
and is not violative of Articles 14, 15 and 16 of the Constitution.
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