[No.216]

Supreme Court

• Fedders Lloyd Corportion Ltd. Vs. Commissioner of Central Excise, Mumbai

The appellant had manufactured the condensing units of spilt air conditioners and purchased the cooling units from local manufacturers fabricated on order with motors, etc., supplied by the appellant to manufacturer. After putting the two units together and carrying out certain quality tests, the appellant had affixed its brand name on the complete air conditioners and delivered them to the various customers. The appellant raised the invoices for supply of air conditioners. A show cause notice was issued by the department for demanding duty on ground that the appellant had clandestinely removed certain air conditioner units from its warehouse without the payment of duty. An appeal for challenging the demand was filed by the appellant before the Commissioner (Appeals). The appeal was dismissed and demand was confirmed by the Commissioner (Appeals). An appeal filed before the Tribunal was also dismissed. Being aggrieved, the present appeal was filed by the appellants. Question arose that whether the appellant was manufacturing the split air-conditioners and liable to pay the duty. The Apex Court held that one part of the spilt air conditioners i.e. condensing units were manufactured by the appellant and the other part i.e. cooling units were procured from the local market for which the electrical motors were supplied by the appellant itself. Neither the condensing unit nor the cooling unit by itself make a complete air conditioner and it is only when these two, i.e. condensing unit and cooling units were put together the complete unit of air conditioner fit for use came into existence. The process of putting these two units was carried out by appellant, which bring into existence air conditioner, a commercially new article than the condensing unit and cooling unit. Thus, the process carried out by the appellant must be considered as manufacturing and appellant was liable to pay the duty on the same. Accordingly, appeal was liable to be dismissed

• Eastern Book Company and Ors. Vs. D.B. Modak and Anr.

The appellants were involved in the printing and publishing of law books including "Supreme Court Cases" (SCC). The appellants filed an application before the High Court for seeking interim injunction against the respondents on ground that the respondents were infringing their copyright by lifting sequencing, selection and arrangement of the cases and text of copy-edited judgments published in their law book SCC. The appellants also alleged that the respondents were copying the style and formatting, paragraph and footnote numbers, cross-references, etc. for incorporation in their CD product. In support of their allegation, the appellants contended that inputs placed in the raw text constitute 'original literary work' and thus, the respondents were liable for causing infringement of copyright. The Single Judge rejected the appellants' application for interim injunction. Being aggrieved by the decision of the Single Judge, the appellants filed an appeal before the Divison bench. The Division Bench rejected the appellants' contention that by making certain corrections or placing inputs in a particular manner their works become the 'original literary work' and thus, dismissed the appeal. Hence, the appellants filed the present appeal. Question arose that whether by introducing certain inputs in the raw text of the Judgment, it becomes "original copy-edited Judgment" based on which the publisher can claim copyright. The Apex court held that collection of material and addition of inputs in the raw text does not fulfill the minimum requirements of creativity. To establish copyright, the creativity standard applied is not that something must be novel or non-obvious. To claim copyright, there must be some substantive variation. In the present case, inputs put by the appellants in the copy-edited judgments did not touch the standard of creativity required for the copyright. Thus, the appellants have no copyright on the same. However, inputs and task of paragraph numbering and internal referencing requires skill and labour having a flavour of minimum amount of creativity. Further putting an input in form of different Judges' opinion shown to have been dissenting or partly dissenting or concurring, etc. required reading and understanding the questions involved and the appellants have a copyright in the same, which nobody can utilize. The appeal was accordingly partly allowed. The respondents were entitled to sell their CD-ROMS with the text of the Judgments of the Supreme Court along with their own head notes, editorial notes and directions as passed by the Court

High Courts

Delhi

• CFA Institute and Anr. vs. All India Council for Technical Education

The petitioner No. 1 is a non-stock corporation incorporated under the laws of Virginia (USA) and its members are designated as Chartered Financial Analyst (CFA) or are active in the investment business. The petitioner has filed the present petition assailing the order of the All India Institute of Technical Education ordering the petitioner to cease operation in India. The main issues involved in the present petition was whether the petitioner Institute is involved or engaged in emerging technical education and whether the provisions of the AICTE Act and the foreign Universities Regulations are applicable to the institute. The court held that in deciding whether the petitioner was engaged in education or not, the fact that what is conferred by the institute is not a degree or diploma is insignificant. Held petitioner is involved in imparting technical education and that its charter, though not described as a degree or diploma, confers an academic standard, entitling admission to further courses, and better prospects of employment in investment business. Therefore dismissing the petition the court upheld the order of the AICTE.

• Escorts Limited vs. Knorr Bremse-AG

The present petition has been preferred under Section 37(2)(a) of the Arbitration and Conciliation Act, 1996 against an order under Section 16(2)(3) of the Arbitration and Conciliation Act, passed by the Arbitral Tribunal refusing to consider the counter claim of the petitioner during the arbitration proceedings before the Tribunal. Petitioner had license to manufacture brakes under an agreement. On violation of Article 1(3) of the agreement, the respondent served a legal notice upon the Petitioner. The petition filed by respondent under Section 9 of Act against the petitioner was dismissed and appeal before the Division Bench was adjourned. Parties then constituted Arbitral Tribunal. Held that since the matter was referred to the Tribunal the court will not examine validity of earlier order. Petitioner then filed a counter claim before Tribunal, which was rejected. Hence this Appeal. The main issue in question is whether the petitioner can file counter claim during the pendency of proceedings before the High Court. Held, petitioner cannot be deprived of raising a counter claim before the Arbitral Tribunal on the ground that the dispute referred was in respect of the claim made in the petition under Section 9 of the Act. A counter claim can be filed by the opposite party while filing reply to the claim of the claimant and when a counter claim is filed that becomes subject matter of the dispute between the parties the Tribunal cannot refuse to entertain the counter claim. If fresh dispute is raised it would result in multiplicity of proceedings. Accordingly petition allowed.

Telecom Regulatory Authority of India (TRAI)

• TRAI Forwards Report on Digitalization and Introduction of Voluntary CAS to Ministry of Information and Broadcasting

Press Release No: 106/2007 dated 27.12.2007: The Telecom Regulatory Authority of India has Forwarded the Report on Digitalization and Introduction of Voluntary CAS to Ministry of Information and Broadcasting alongwith the comments of 16 stakeholders to Ministry of Information & Broadcasting for further action. The major recommendations in the Group's report are: • Voluntary CAS would be a non-starter unless the date from which CAS is to be implemented is mandated by the Government. • The dates of roll out of CAS for these identified cities to be notified in advance by the Government of India in one go. • 55 cities in the country, i.e. all state capitals, and all other cities with a population of one million and above, have been identified for this purpose. • The 55 identified cities may be covered in phases over a time frame spread over three years from Oct 2008 to Sept 2011. • Voluntary efforts towards digitalization and introduction of CAS ahead of the mandated date for roll out of CAS to be facilitated by extending the existing CAS regulatory framework. • Framework to facilitate voluntary efforts for introduction of CAS in cities other than the identified cities also provided.

SEBI

• Amendments to Equity Listing Agreement

Circular No. SEBI/CFD/DIL/LA/4/2007/27/12 Dated 27.12.2007: The decision to amend Equity Listing Agreement is to bring more transparency in the governance of a listed company with regard to utilisation of issue proceeds and to enhance availability of and accessibility to the continuing disclosures by listed companies. Currently, clause 49 of Equity Listing Agreement requires the Audit Committee of an issuer company to monitor the utilisation of issue proceeds and to make appropriate recommendations to the Board of the issuer company. But amendment to clause 49 of Equity Listing Agreement now requires the issuer company to place the monitoring report filed with it before its Audit Committee. New clauses have also been introduced viz., Clause 52 in Equity Listing Agreement, that requires listed companies to file information with the stock exchange only through CFDS and 43A - Statement of deviations in use of issue proceeds

RBI

• RBI Releases Draft Approach Paper on Fair Pricing and Enhanced Access of Bank ATMs

Press Release No. 2007-2008/837 Dated 24.12.2007: The Reserve Bank of India has today released on its website a draft approach paper titled 'ATMs of Banks: Fair Pricing and Enhanced Access'. As the charges levied on the customers vary from bank to bank and also vary according to the ATM network that is used for the transaction, a customer is not aware, before hand, of the charges that will be levied for a particular ATM transaction. This generally discourages the customer from using the ATMs of other banks. Enhanced and cost effective access to ATMs plays an important role in technology based financial inclusion. The Paper is intended to establish a fair and transparent framework for levy of service charges for Automated Teller Machines (ATMs) such that it would encourage greater financial inclusion and promote enhanced access to ATMs. In this direction, banks may levy service charges as suggested below by the RBI, on their customers, for access to ATMs.

For use of own ATMs for any purpose --- Free

For use of other bank ATMs for balance enquiries --- Free

For use of other bank ATMs for cash withdrawals ---

• No bank shall increase the charges prevailing as on December 23, 2007

• Banks which are charging more than Rs. 20 per transaction shall reduce the charges to Rs. 20 per transaction by March 31, 2008

• Free - with effect from April 1, 2009.

Cases

• Kimbrough vs. United States

In the present case the petitioner Kimbrough pleaded guilty to four offenses of possession with intent to distribute powder; conspiracy to distribute crack and powder; possession with intent to distribute more than 50 grams of crack; and possession of a firearm in furtherance of a drug-trafficking offense. Under US laws a drug trafficker dealing in crack cocaine is subject to the same sentence as one dealing in 100 times more powder cocaine. With the plea of Kimbrough was subjected to imprisonment of 15 years and a maximum of life. However, to come in forth to US Guidelines the District Court found thought that the range should be greater than necessary. Court observed that the guideline range for him would have been lesser if he had possessed only powder cocaine. Finally the court in its final determination in line with §3553(a)'s instructions sentenced Kimbrough to 15 years, or 180 months, in prison.

• Allen v. Daniel Siebert

In the present case Daniel Siebert was convicted for murdering and was sentenced to death by the Alabama State Court. After which he filed a petition for post conviction relief in Alabama state court. The petition was denied on the limitation basis, as he applied three months after expiration of applicable two years. Then he applied an habeas petition under District Court for the Northern District of Alabama just a day before his expiration day to file a appeal. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) has established a one-year statute of limitations for filing a federal habeas petition, where his AEDPA's effective date began at April 1996, so he was late by four years. But in a previous case it was held that "When a post conviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of §2244(d)(2)." In the present case therefore it was held that as Siebert's petition was under a state law of Alabama courts, accordingly he was not entitled to tolling of AEDPA's 1-year statute of limitations.

News

• Global Energy Challenges faced by China and India

At the launch of the latest outlook 'World Energy Outlook 2007', the International Energy Agency (IEA) addressed to the global energy challenges faced by China and India. China and India would be requiring more energy to pace the economic development, which will also transform living standards for billions. With the growing international energy markets in China and India, it is changing the global energy system for which the government needs to change their policies before it immensely increases oil and gas imports, coal use and greenhouse-gas emissions by 2030. To save energy security and climate change the Outlook shows how new policies can pave the way to an alternative energy future.

• Egypt to Get Nuclear help from France

French President Nicolas Sarkozy in a meeting with Egypt President Hosni Mubarak offered to help Egypt develop civilian nuclear technology, where France has great experience and best expertise. The 80 percent of Frances electricity is generated from nuclear power. Areva is the world's biggest maker of nuclear reactors, which is controlled by the state and its activities cover the full nuclear energy cycle from mining to waste. France has agreed nuclear cooperation with Morocco, Algeria and Libya.