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In This Issue [No.111]                                                                            January 30, 2005 International DGFT PIB SEBI CBEC Customs Ministry of Health and Family Welfare Industrial Policy and Promotion Department of Revenue Ministry of Consumer Affairs, Food and Public Distribution Department of Shipping Supreme Court High Courts Site Links Roundup Archives Free Trial Contact us   To keep you informed about the latest Legislative and Regulatory information manupatra.com publishes this e-roundup highlighting the recent changes brought about by the Notifications/Acts/Bills /Ordinances etc. About manupatra.com ../ provides comprehensive and easy to use legal and related information over the Internet .Our database covers Central Laws , Judgments of Supreme Court and High Court (full text of the judgments from 1950 onwards ), Orders of Tribunals , Bills , Notifications, Circulars and more Key features of manupatra are Content is derived from reliable primary and secondary sources Database is updated on a daily basis Electronic Ready Reckoner to view the judgments under a particular section of an Act / Subject Powerful search engine with user friendly interfaces Search in any one court/year or multiple courts/year Hyper-linking of documents Updated modules on WTO, Anti Dumping, Arbitration, Investment Destinations Abroad, Capital Markets, Taxation, Environment, Cyber & IT Laws, IPR, Corporate Laws, Industrial Policies, Foreign Trade, Forex & Banking and more     For subscription to manupatra.com or for more details please log onto ../ or call us at 0120 2531811 or send an email to : contact@manupatra.com If at any stage you wish to stop receiving the e-roundup please click here to unsubscribe. International Legal News Cases Source: Westlawinternational.com Contracts: Homeowners cannot recover payments made to an unlicensed contractor. In a matter of first impression, a homeowner may generally not recover payments already made to an unlicensed contractor merely because the contractor did not hold a license when the contract was executed. In this case, the homeowners were denied damages for money they personally expended to complete their house and for alleged construction delays, given that their damages did not exceed the $18,000 final payment they withheld from the contractor. Lenz v. Walsh Consumer Protection: Regulations governing unfair trade practices in area of home improvement allow for piercing of corporate veil. As a matter of first impression in Wisconsin, the Court of Appeals held that an administrative code chapter governing unfair trade practices in the area of home improvement allows for the piercing of the corporate veil to impose liability on individual wrongdoers when the individual, rather than the entity, is responsible for devising an unfair method of selling home improvements. The Court of Appeals distinguished the regulations from the Americans with Disabilities Act, which did not contemplate holding an employer's agent personally liable. In the home improvement industry, the individual clearly possesses the power to ensure fair dealing and practices. Rayner v. Reeves Custom Builders, Inc. Contracts: Bank did not breach contract with safety deposit box renters by failing to provide notice to renters' new address. A bank did not breach its contract with the renters of a safety deposit box when the bank failed to notify the renters at their new address of a problem with the rent before drilling the box. The lease required the renters to notify the bank in writing of any change in address. Although one renter testified he notified the bank, he could not remember how he notified the bank. In addition, there was no evidence of any correspondence which notified the bank of an address change. The bank's records reflected several addresses for the renters, and the bank sent notice to one of the addresses. Thus, the bank did not breach its contract by failing to notify the renters before drilling the box. Mitchell v. Bank of America, N.A. Secured Transactions: Debtor had rights in property prior to granting security interest therein. Even assuming that contracts for the production and purchase of molds that a manufacturer planned to use in its production process qualified as "contracts for sale on approval" under Illinois law, the manufacturer accepted these molds, and acquired title thereto, prior to the time that it purported to grant a bank a security interest therein. Prior to that time, the manufacturer had approved final samples for the molds and, despite being aware of defects therein at the time of delivery, did not reject the molds but sought to correct the problems therein, paid the sellers for the molds, and used them to manufacture large numbers of its products. In re S.M. Acquisition Co. Savings and Loans: State law governing payment on interest on mortgage escrow accounts was preempted. A mortgage loan agreement between borrowers and a federal savings association did not evince, with the requisite clarity, an intent to incorporate the terms of preempted New York statutes requiring the payment of interest on escrow accounts, based solely upon a general choice-of-law provision specifying that the agreement would be governed by federal and New York law. Regulations promulgated by the Office of Thrift Supervision (OTS) pursuant to the Home Owners' Loan Act (HOLA), that removed all legal obligations that federal savings associations might otherwise have to pay interest on mortgage escrow accounts and allowed such matters to be governed by loan contract, preempted contrary New York law. Flagg v. Yonkers Sav. and Loan Ass'n, FA Confessions: Suspect's statement during custodial interrogation was not unambiguous and unequivocal request for counsel. A murder suspect's statement to police during custodial interrogation, "if for anything you guys are going to charge me I want to talk to a public defender too, for any little thing," was conditional, and thus, not an unambiguous and unequivocal request for counsel that required officers to stop questioning. A reasonable officer would not have understood the suspect to be making an immediate request for counsel, and the police were not required to ask the suspect for clarification. People v. Gonzalez Habeas Corpus: Habeas court did not afford state court's determination of facts the appropriate level of deference. A federal habeas court erred by determining that, because the state court's finding as to the petitioner's contemporaneous understanding of the nature of his plea bargain was not based on a separate evidentiary hearing, it was not entitled to deference under Antiterrorism and Effective Death Penalty Act. The state court considered all of the evidence submitted by the petitioner and did not refuse the petitioner the opportunity to develop his claims. Buckley v. Terhune Crimes: ISP did not illegally "intercept" customer's e-mails. An ISP did not "intercept" a customer's e-mails, in violation of the Electronic Communications Privacy Act, when it received and stored his e-mails after terminating his e-mail service based on an incorrect report that he was a "spammer". The ISP's conduct came within the ordinary course of business exception to the statutory prohibition against interception. Hall v. EarthLink Network, Inc. Internet: Website operator was in civil contempt for noncompliance with removal order. An Internet website operator was in nonwilfull civil contempt of a court order, that it cease displaying lyrics of copyrighted songs on the site, or distributing the songs from the site. The website supervisor gave unclear instructions to the staff, failed to emphasize the importance of compliance with the order, and did not monitor the site. As a result, compliance was slow, and a critical link facilitating access to the songs, temporarily removed, was restored by human agency after a period of approximately two weeks. Shady Records, Inc. v. Source Enterprises, Inc. Consumer Goods: Patent for collapsible flotation device was not infringed. A patent for a collapsible flotation device, consisting of a circular ring surrounding an annularly shaped bladder, was not equivalently infringed by an accused device whose bladder filled the entire space inside its ring. The claimed bladder was intended to support the body weight of a human being in water, while the accused bladder was intended to be thrown in the air as a toy. Swimways Corp. v. Overbreak, LLC On-Sale Bar: Drug patent was likely invalid under the on-sale bar. An alleged infringer was likely to prevail on its claim that a drug patent was invalid under the on-sale bar, for purposes of issuing a preliminary injunction prohibiting infringement while appeal in an infringement action was pending. The patentee had made three sales of the drug more than a year before obtaining the patent, and the parties knew that the sale embodied a form of the drug that was later patented. In re Terazosin Hydrochloride Antitrust Litigation News German high court judge revives controversy over neo-Nazi party Renewing public interest in outlawing the extreme right wing party, National Democratic Party, the President of Germany’s Constitutional Court held that the controversial group could be still banned under German Law. In 2003, the Court had overturned the German Government’s attempt to ban the group using German Procedural Law. Recently, NPD members of Parliament refused to take part in a moment of silence for the victims of the Holocaust during the Parliament’s recognition of the 60th anniversary of the liberation of Auschwitz. Germany has laws forbidding the preaching of racial hatred and denying the Holocaust. Nazi symbols are also outlawed in Germany, and German politicians had also recently asked the European Union to adopt the ban. Released Briton details assault, torture at Guantanamo A former Guantanamo Bay prisoner, a British National released last week has written a report of his imprisonment containing allegations of torture, repeated assault, and near-suffocation. In his report, Begg claims that that his captors threatened his family, killed other prisoners, and interrogated him more than 250 times. Begg, who ran an Islamic bookstore in England, was captured in Pakistan by US forces in 2002. He was taken to Bagram airbase in Afghanistan where he was tortured during interrogation. Begg also claims that he was coerced into signing a confession in February 2003 that said he is a member of al-Qaida, and further alleges that tactics including sleep deprivation, threats of execution, beatings, and racial or religious taunts were commonly employed by American interrogators to extract confessions. The released prisoners have not been charged with acts of terrorism but have been said to remain a "significant threat" and therefore may be held under bail-style restrictions or house arrest under new emergency anti-terrorism powers being sought by British Home Secretary Charles Clarke. Irregularities cited in Mosul vote as Iraq count continues Amidst reports of a good turnout at the polls in Iraq, some late reports out of the northern Iraqi city of Mosul say that the poll there, although it drew more voters than expected, was burdened by glaring irregularities. The Independent Electoral Commission of Iraq had to send a quickly trained replacement team to the city after local election workers resigned earlier this month citing security concerns. Kurdish and Christian politicians have complained about a lack of ballots that resulted in rioting in one location. Election workers also are said to have provided too much help to voters and in several instances suggesting who should they vote for. Jackson plea on eve of abuse case Michael Jackson has denied 10 counts of child molestation and conspiracy and has once again claimed to be innocent and stated that the truth will ultimately prevail. The pop icon had done the same in his child abuse case in which he faces grave charges of child molestation. If convicted, he could face a long jail term. The first stage of the much awaited trial could last up to six months and about 750 prospective jurors are to be screened to find the final 12 jurors and 8 eight alternates who will serve as jury on the case. Jury selection could take over a month or longer. In another development, more than 1,000 journalists have applied for accreditation in the town of Santa Maria, California where the trial is being held. EU justice, immigration ministers balk at UN call to take more refugees A UN appeal to European Union countries to draft a joint resettlement policy-allowing acceptance of more refugees was met with reluctance by European Justice and Immigration Ministers’ conference in Brussels. UN High Commissioner for Refugees, Ruud Lubbers called on EU states to agree to measures that would allow relocating refugees evenly across the EU. Germany in particular, cited economic concerns and argued it cannot cope with the number of refugees currently seeking asylum within its borders. The EU ministers had agreed in 2004 to set up a common asylum and immigration policy by 2010 for the refugees. Colombia and Venezuela resolve dispute over rebel arrest Colombia's government announced the end of a dispute with its neighbour, Venezuela over the capture of a Colombian leftist rebel leader by bounty hunters on Venezuelan soil. Colombia had acknowledged paying bounty hunters to capture Rodrigo Granda, a member of the rebel group FARC from Caracas and take him back to Colombia. Venezuela accused Colombia of violating Venezuela's sovereignty stating that it was a kidnapping. Colombia denied the accusation saying that the capture was a legitimate part of its war against the rebels. A statement from Bogota on Friday stated that the dispute between the South American neighbors has been resolved, and that Colombian President Alvaro Uribe will meet with his Venezuelan counterpart, Hugo Chavez, on February 3 in Venezuela. DGFT List of Export Promotion Councils/Commodity Board Public Notice No. 49/2004-09 Dated 24.01.2005: The Director General of Foreign Trade has notified that an exporter desiring to obtain a Registration-cum-Membership Certificate (RCMC) shall declare his main line of business in the application, which shall be made to the Export Promotion Council (EPC) relating to that line of business. However, a status holder shall have the option to obtain RCMC from Federation of Indian Exporters Organization (FIEO). The list of Export Promotion Councils/Commodity Board has also been revised. PIB Amendments to the Administrative Tribunals Act, 1985 Dated 27.01.2005: Union Cabinet has given its approval for amendments to the Administrative Tribunals Act, 1985 for deletion of Tribunals’ power to punish for contempt provided under Section 17 of the Act. The CAT will, however, be able to invoke power to punish for contempt through the concerned High Court, in accordance with the Contempt of Courts Act, 1971. SEBI Primary Market Division Amendments to the SEBI (Disclosure and Investor Protection) (DIP) Guidelines, 2000 Circular No. SEBI/CFD/DIL/DIP/14/2005/25/1 Dated 25.01.2005: The amendments made to the SEBI (Disclosure and Investor Protection) Guidelines, 2000, were intended to achieve uniformity in terms of presentation of disclosures in the prospectuses and to make the abridged prospectus more readable. The circular also amended requirements pertaining to issue advertisements and removed the restrictions on appointment of co-managers, advisors, etc. CBEC CUSTOMS Anti-dumping Duty Imposed on Import of Flexible Slabstock Polyol Notification No. 4/2005 Dated 24.01.2005: In the matter of import of Flexible Slabstock Polyol, falling under Sub-heading 3907 20 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from, the People’s Republic of China, Republic of Korea, Taiwan and Brazil, the Central Government, has vide this notification, imposed a definitive anti-dumping duty on the import of said goods. Ministry of Health and Family Welfare  Drugs and Cosmetics (1st Amendment) Rules, 2005 Notification No. GSR35(E) Dated 20.01.2005: Vide this notification, the Central Government has further amended the Drugs and Cosmetics Rules, 1945, adding proviso that Registration certificate shall not be required to be accompanied with an application for an import licence under the rules for the import of in-vitro diagnostic kits and regents, except for the diagnostic kits notified from time to time under sub-clause (iv) of clause (b) of section 3. Ministry of Commerce and Industry - Industrial Policy and Promotion Newsprint Control (Amendment) Order, 2005 Order No. S.O. 66(E) Dated 19.01.2005: The Central Government, vide the said notification further amended the Newsprint Control Order, 2004, adding to the list of the names of the mills and locations of the indigenous newsprint manufacturers. Ministry of Finance - Department of Revenue Authority for Advance Rulings (Customs, Central Excise and Service Tax) Procedure Regulations, 2005 Notification No. 1/2005-AAR Dated 07.01.2005: The Authority for Advance Rulings (Customs, Central Excise and Service Tax) has formulated these regulations to regulate its own procedure in all matters arising out of the exercise of its powers under the Customs Act, 1962 (52 of 1962), the Central Excise Act, 1944 (1 of 1944) and the Finance Act, 1994. The said regulations are said to be coming into force on the 26th January, 2005. Ministry of Consumer Affairs, Food and Public Distribution Sugar (Price Determination for 2004-2005 Production) Order, 2005 Order No. GSR 17(E)/Ess.Com./Sugar Dated 12.01.2005: The Central Government has brought to the fore Sugar (Price Determination for 2004-2005 Production) Order, 2005, listing the price of All India Sugar Standards (AISS) Grades of Sugar, produced in 2004-2005 Season. Ministry of Shipping, Road Transport and Highways - Department of Shipping Merchant Shipping (Sailing Vessels) Amendment Rules, 2004 Notification No. GSR 27(E) Dated 13.01.2005: In order to add "Port Blair (Andaman and Nicobar Islands)" in Schedule V of the Merchant Shipping (Sailing Vessels) Rules, 1997, the Central Government vide this notification, has amended the Merchant Shipping (Sailing Vessels) Rules, 1997. Supreme Court Brahm Dutt Vs. Union of India A writ petition was filed by a practicing advocate praying for the relief of striking down Rule 3 of the Competition Commission of India (Selection of Chairperson and other Members of the Commission) Rules, 2003. The main contention was that the Chairman of the Commission should be a juristic person nominated by the Chief Justice of India and not a career bureaucrat. The arguments put forward by the Union of India were that the Commission was more of a regulatory body and it is a body that required expertise in the field of accountancy, trade, management, finance, public affairs. The Supreme Court observed that it might be appropriate for the respondents to consider with what is said to be the international practice, to create two separate bodies, one with expertise that is advisory and regulatory and the other adjudicatory, followed up by an appellate body as contemplated by the proposed amendment. Bharat Heavy Electricals Ltd. Vs. M. Chandrasekhar Reddy and Ors. The respondent, was employed at the level of Assistant Grade-I,  he availed of house building advance by depositing title deeds of his properties as securities,  title deeds of the property belonging to the respondent was to be in custody of the employers till the entire amount of the loan with interest was discharged. Before the entire loan was discharged certain public notices were published in the local Newspaper calling upon the intending purchasers to make their offers for the purchase of the property belonging to the respondent which was mortgaged to the appellant by deposit of title deeds, the original title deeds which were supposed to be in deposit of the employer were in the in respondents custody. Based on said facts a departmental enquiry was instituted and on the reports submitted by the Enquiry Officer and taking into consideration the seriousness of the charge the services of the respondent were terminated. Aggrieved the respondent approached the local Labour court which modified the order as one of reinstatement and fresh appointment as AG-I, thereafter a petition was filed before a single judge bench of the High court which came to be dismissed. Against the said decision cross appeals were filed by both the parties. A division bench of the High court declined interfere with the orders of the courts below. The Supreme court set aside the order of theLabour court directing reinstatement of the respondent while his dismissal pending enquiry was upheld High Courts Delhi Commissioner of Central Excise, Bangalore Vs Vikrant Tyres Limited Respondents engaged in the business of manufacturing tyres, they received tyre cord fabrics on which duty had been paid by the manufacturers before being dispatched to the respondent. Respondent carried out coating of rubber on such fabrics and then subjected them to calendaring. Dispute arose between the revenue and the respondents regarding the correct excise classification of the rubber coated tyre cord fabrics. Respondents filed an appeal before the Commissioner (Appeals), who decided the issue in their favour, relying on a number of decisions of higher courts. Revenue filed an appeal against the said order on the ground that the judgments cited by the respondent were not final, as they had been challenged before the Supreme Court. CESTAT, Northern Bench considered the issue on merits and concluded that the correct classification was item 5902 since processes were involved in the manufacture of tyres and they took place subsequent to the completion of the manufacture of cord fabrics. Chhattisgarh Gurjeet Singh Mann Vs State of Chhattisgarh Complainant purchased a vehicle and got it financed. Later on it was discovered that in fact a second hand vehicle had been passed off as a new one. The Complainant instituted criminal proceedings against the dealer from whom the vehicle in question had been purchased. The vehicle was seized and an application for its release was filed by the complainant, the same was allowed subject to the condition that the complainant should continue to make payments to the finance company. A revision against the conditions imposed was preferred by the complainant and was disallowed by the Chief Judicial Magistrate. Aggrieved by the said order the complainant approached the High Court on the ground that the question regarding the entitlement of the finance company was a civil matter and the magistrate did not have jurisdiction to decide the same. The High Court at Bilaspur allowed the petition of the complainant and observed that only those conditions that were necessary for the safe custody of vehicle could have been imposed, all other conditions were illegal. Andhra Pradesh N. Seshagiri Rao Vs Transmission Corporation of A.P. Limited and another The petitioner retired as a Divisional Engineer (Operations), subsequently he was served with a memo referring to certain punishments imposed while he was in service, ultimately respondent imposed a punishment of 25% cut in the pension of the petitioner for a period of 5 years, a departmental appeal preferred by the petitioner was rejected. After completion of punishment period the respondent appointed an enquiry officer to conduct an enquiry against the petitioner after framing of charges. The petitioner challenged the action of the respondent by way of a writ petition and sought directions for release of terminal benefits due to him, it was argued that once an employee is permitted to retire continuance of departmental proceedings would be bad in law. The High Court at Hyderabad, allowed the petition and quashed the order initiating enquiry proceedings against the petitioner, however the respondents were left at liberty to initiate criminal proceedings against the petitioner. Goutham Chand Jain and others v. Baqtawar Begum and others In the present case, applications were filed for passing a final decree in respect of property in a partition suit. The petitioners claimed that the legal representatives of a deceased defendant could not file an application for final decree in respect of bits of land since the same was already allotted to the deceased defendant by the Court Commissioner which was later was made final by the Court. The High Court of Andhra Pradesh held that a final decree in a partition suit can take place in the presence of all the parties and that till the same is passed no party can claim absolute right with respect to a part of the suit schedule property. The High Court therefore observed that allotment of shares could take place only after taking the views of all the parties to the suit Disclaimer (1) While all reasonable care has been taken to ensure that the information provided in the "round up" and on the website is fair and accurate the company and its promoters and employees shall not in any way be responsible for the consequences of any action taken on the basis of reliance upon the contents of this "round up". (2) This is not a Spam mail. You have received this mail because you have either requested for it or someone must have suggested your name under our various referral programs. Since India has no anti-spamming law, we refer to the US directive, which states that a mail cannot be considered Spam if it contains the sender's contact information, which this mail does. In case this mail doesn't concern you, please unsubscribe from mailing list. Feedback