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[No.74]
January 20, 2004 |
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International Legal News
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Cases
Source:
Westlawinternational.com
The Florida grandparent visitation statute, allowing a court to grant
grandparent visitation rights if it is in the child's best interest, without
requiring a showing of harm to the child as a result of the lack of grandparent
visitation, does not further a compelling state interest. Thus, it is facially
unconstitutional, because it impermissibly infringes on a parent's state
constitutional privacy right to raise his or her child.
Sullivan v. Sapp
Last year, the Fourth Circuit held that foreign casino services offered to
United States citizens by a foreign casino operator were rendered in foreign
trade, and thus the foreign casino operator's unregistered "Casino de Monte
Carlo" mark was being used "in commerce" within the meaning of
the Lanham Act, even though the casino services were provided overseas and may
not have had a substantial effect on the foreign commerce of the United States.
The United States Supreme Court has now denied certiorari in that case. The
petitioners, online gaming sites that used domain names like "casinodemontecarlo,"
"casinomontecarlo," and "casino-montecarlo," argued that the
Lanham Act does not entitle foreigners to U.S. trademark rights and remedies for
descriptive terms, where the service mark at issue is not registered in the U.S.
and the services are rendered solely outside the United States.
International Bancorp, LLC v. Societe des
Bains de Mer et du Cercle des Etrangers a Monaco
The United States Supreme Court has denied certiorari in a case in which the
Ninth Circuit held that a competitor infringed a holder's trademark for the
pharmaceutical product "Pycnogenol" by using that word as a meta-tag
on the competitor's websites. A "meta-tag" is used by Internet search
engines as an indexing tool to determine which websites correspond to the search
terms provided by a user. The competitor's websites, which were used to
advertise and sell pharmaceutical products, engaged in criticism and comparative
advertising directed at the holder's product. According to the competitor's
petition for certiorari, he hoped his websites would be found by users of
Internet search engines looking for information on the holder's product.
The Ninth Circuit held that the use of the trademark in meta-tags did not
qualify for the classic fair use defense, since the mark did not possess any
meaning other than its use as a registered trademark. Furthermore, the
competitor failed to show that his use of the trademark did not suggest
sponsorship or endorsement by the holder, in his assertion of the defense of
nominative fair use. The competitor used the trademark pervasively on his
website to advertise and sell pharmaceutical products, not just in the text of
his websites, but also in the meta-tags, and, thus, the competitor exceeded any
measure of reasonable necessity in using the mark.
The competitor's petition for certiorari stated that the Ninth Circuit erred in
finding that "initial interest confusion" alone was sufficient to
constitute a trademark violation, and in reversing the burden of proof and
compelling the competitor to prove that he was entitled to make what the Ninth
Circuit, alone among the circuits, called the "nominative fair use"
defense. The petition asserted that the Ninth Circuit's approach rendered
comparative advertising via search engines almost impossible.
Garcia v. Horphag Research Ltd.
Certiorari has been denied in a case in which the Eleventh Circuit Court of
Appeals held that suits by the Republics of Belize, Honduras, and Ecuador,
alleging that a United States tobacco company violated the Racketeer Influenced
and Corrupt Organizations Act (RICO) by schemes to avoid their tax laws, were,
in substance, suits to enforce those countries' revenue laws. Thus, the suits
were barred by the revenue rule, regardless of whether the countries framed
their damages as the direct loss of tax revenue or the indirect effects of such
lost revenue, such as increased law enforcement costs or increased costs of
combating smoking. The common-law "revenue rule" prevents courts of
one sovereign from enforcing or adjudicating tax claims from another sovereign.
The Court of Appeals further held that amendments to RICO enacted through the
Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism (USA PATRIOT) Act did not preempt the
application of the revenue rule to RICO claims. The deletion of a certain rule
of construction from the final act did not demonstrate legislative intent to
abrogate the application of the revenue rule to RICO claims. The Court of
Appeals noted that the Supreme Court has held that the failure of a legislative
proposal does not show that Congress endorsed the opposite proposition.
Republic of Honduras v. Philip Morris
Companies, Inc.
News
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Final screening of the Jury selection in Martha
Stewart stock-selling case will begin on Tuesday, 20th Jan. It is likely to be
the most closely watched criminal trials of a corporate executive this year.
Martha Stewart, 62, has been charged for selling nearly 4,000 shares of ImClone
Systems in 2001 just a day before it stumbled because of a negative government
report about an experimental ImClone cancer drug.
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McDonald's Restaurants has decided not to renew
Kobe Bryant's sponsorship agreement. Bryant's three-year sponsorship deal the
fast food company expired on December 31st. Kobe Bryant of Los Angeles Lakers
has been five-time NBA All-Star and has helped Los Angeles to three league titles. Bryant
has been accused of sexual assault and is facing a trial in the Colorado Court.
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Judge Seeraj Desai, 53 of South African High
Court has denied charges of raping a fellow delegate. Judge had come to India to
attend the six-day World Social Forum being held in Mumbai. Issues ranging from
the environment to the US-led occupation of Iraq were being discussed. Mr
Desai has admitted having sex with the woman but insists it was by mutual consent. Court
on Monday remanded him to custody until Friday after refusing to grant him bail.
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U.S. District Judge Samuel Conti on Friday
ruled that the marine biologists can keep testing a sonar system for detecting
deep-sea whales. Various environmental groups including Australians for Animals
and Sea Sanctuary had argued that high-frequency sound could distress and
disorient whales, drive them from their habitat and separate calves from their
mothers.
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Samantha Marson, a British student was jailed
after she joked with airport authorities that she was carrying a bomb in her
rucksack. The 21-year-old from Bridgnorth sparked a security alert as she waited
to board a British Airways flight from Miami back to Britain. Samantha had been
staying in US for last three months with her American boyfriend and was
returning back to the UK to renew her visa.
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Italian scientist are developing a pill having
all the health benefits of a glass of red wine.The pill will contain all of the
healthy ingredients of red wine without the alcohol. Many studies conducted
suggest that a glass or two of red wine is good for health. This fact is evident
to the extent that some hospitals in the UK prescribe red wine to heart attack
patients.
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SEBI
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Secondary Market Division
Circular No. SEBI/MRD/SE/Cir-7/2004 Dated 14.01.2004 : With a
view to imparting transparency in bulk deals so as to prevent rumours/speculation
about such deals causing volatility in the scrip price, it has been decided to
bring about greater disclosure of such deals as mentioned below:-
(i) The disclosure shall be made with respect to all
transactions in a scrip where total quantity of shares bought/sold is more than
0.5% of the number of equity shares of the company listed on the stock exchange.
(ii) The brokers shall disclose to the stock exchange the
name of the scrip, name of the client, quantity of shares bought/sold and the
traded price.
(iii) The disclosure shall be made by the brokers immediately
upon execution of the trade.
(iv) The Stock exchanges shall disseminate the aforesaid
information on the same day after market hours to the general public.
Circular No. SEBI/MIRSD//Cir- 06/2004 Dated 13.01.2004 : SEBI
has noticed that certain members/sub brokers are dealing through a large number
of other stock brokers/sub brokers of the same exchange/other exchange for their
proprietary trades as well as trades on behalf of clients. With a view to
address these concerns, stock exchanges are directed to ensure the following :
(i) A stock broker/ sub broker of an exchange can not deal
with brokers/sub brokers of the same exchange either for proprietary trading or
for trading on behalf of clients, except with the prior permission of the
exchange.
(ii) A stock broker/sub broker of an exchange can deal with
only one broker/sub broker of another exchange for proprietary trading after
intimating the names of such stock broker/sub broker to his parent stock
exchange.
Circular No. SEBI/MRD/DEP/Cir-5/2004
Dated 13.01.2004 : It has been observed by Board from the information provided
by the depositories that the certin specified companies have established
connectivity with both the depositories on or before 30.09.2003 and still
continue in TFTS. So, the Stock Exchanges are advised that they may shift these
companies from TFTS to NRS provided there are no other specific grounds for
continuation of the trading in these scrips in TFTS. Stock Exchanges are further
advised to report to SEBI, the action taken in this regard in Section II, item
no. 13 of the Monthly Development Report for the month of January 2004.
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Department of Revenue
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Notification No. SO20(E) Dated 07.01.2004 : In the
notification, at pages 5 and 9 serial No. 9 in Column 4 for "2003-2004,
2004-2005 and 2005-2006 read "2004-2005, 2005-2006, and 2006-2007".
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CBDT
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Notification No. 15/2004 Dated 12.01.2004 : The Central
Government has specified that the provisions of the first proviso to
sub-section(1) of section 139 of the Income Tax Act, 1961 shall not be
applicable to the class of persons being individuals who have income from
pension but are not engaged in any business or profession during the previous
year.
Notification No. 14/2004 Dated 12.01.2004 : In the Income-tax
Rules, 1962 :-
(A) rule 2E has been substituted;
(B) in Appendix II to the Income-tax Rules, 1962, in Form
No.56E,-
(i) in the opening portion, in the heading, for the words "business
of developing, maintaining and operating any infrastructure facility", the
words "eligible business" have been substituted.
(ii) in serial number 5, in the entry, for the words "for
developing, maintaining and operating an infrastructure facility", the words
"in respect of the eligible business" have been substituted.
(iii) in the Notes, in item number (iii), for the words "for
developing, maintaining and operating an infrastructure facility", the words
"in respect of the eligible business" have been substituted.
Notification No. 13/2004 Dated 12.01.2004 : The Central
Government has framed the scheme naming " Scheme for Filing of Returns by
Salaried Employees through Employer, 2004" which shall come into force from
the 1st day of April, 2004. The scheme shall be applicable to all the employees who
fulfill the eligibility criterion set for the scheme. According to be eligible an employee has to fulfill certain conditions viz:
(i) he must be an individual, resident in India;
(ii) his total income includes income chargeable to income
tax under the head 'Salaries';
(iii) the income from salaries before allowing deduction
under section 16 of the Income-tax Act, 1961, does not exceed rupees one lakh
fifty thousand;
(iv) his total income does not include income chargeable to
income-tax under the head 'Profits and gains of business or profession' or
'Capital gains' or, agricultural income; and
(v) he is not in receipt of any other income from which tax
has been deducted at source during the previous year by any person other than
the employer.
Notification No. 12/2004 Dated 12.01.2004 : Amendments have
been in the Income Tax Rules, 1962 to bring into effect the new provision where
there shall no requirement of filing of income tax return by an individual
assessee resident in India whose total income includes income chargeable to
income-tax under the head 'Salaries' and such income before allowing deductions
under section 16 of the Income-tax Act, 1961 does not exceed rupees one lakh
fifty thousand. In such a case the above mentioned assessee is required to file
Form No. 16AA relates to Certificate for tax deducted at source from income
chargeable under the head "Salaries"-cum- Return of income. To make
these changes effective, in Income Tax Rules, 1962:-
(i) in rule 12, in sub-rule (1), in clause (b), after the
second proviso, a new proviso has been inserted ; and
(ii) in Appendix II, after Form No.16A, a new Form No. 16AA
has been inserted having title "Certificate for tax deducted at source from
income chargeable under the head "Salaries"-cum- Return of
income".
All these amendments shall come into force from 1st day of
April, 2004.
Notification No. 11/2004 Dated 12.01.2004 : In Appendix-II to
the Income-tax Rules, 1962, in Form No. 49B, item 8 has been substituted. This
amendment has been made effective from 12th Day of January, 2004.
Notification No. 10/2004 Dated 12.01.2004 : Amendments have
been made to bring just one certificate from the Assessing Officer for no tax
deduction at source (TDS) in case of tax exempt entities like trusts etc.
Accordingly amendment has been made in the Income
Tax Rules, 1962 and after rule 28AA a new rule 28AB with its title as "Certificate
of no deduction of tax in case of certain entities" has been inserted. This
change shall be effective from the 1st Day of April, 2004.
Notification No. 9/2004 Dated 12.01.2004 : In Appendix-II to
the Income-tax Rules, 1962, in Form No. 16, for items 13 to 17, new items have
been substituted. This amendment to Form No. 16 has been effective from 12th Day
of January, 2004.
Notification No. 8/2004 Dated 12.01.2004 : In the Income-tax
Rules, 1962, in rule 3, in sub-rule (7), in clause (i), for the portion
beginning with the words "concessional loan made available" and ending with
the words and figures "rate of 13% per annum for other loans", the words,
figures, brackets and letters "concessional loan for any purpose made
available to the employee or any member of his household during the relevant
previous year by the employer or any person on his behalf shall be
determined as the sum equal to the interest computed at the rate charged per
annum by the State Bank of India, constituted under the State Bank of India Act,
1955(23 of 1955), as on the 1st day of the relevant previous year in respect of loans for the same purpose advanced by it",
have been substituted. The amendment has been made to reduce the rate of
interest for housing loans etc for perquisite valuation and also to bring them
in line with the prevailing market rates.
The amendment shall be effective from 1st day of April, 2004.
Notification No. 7/2004 Dated 09.01.2004 : M/s lladevi
Cataract & Intra Ocular Lens Research Centre, Ahmedabad has been Approved
u/s 35(1)(ii)
Order Dated 09.01.2004 : The central Board of Direct Taxes
has extended the last date of filing of TDS returns on computer media as per the
provisions of sub-section (2) of section 206 of the Income Tax Act in respect of
previous year 2002-2003 to 31st March, 2004
Notification No. 6/2004 Dated 08.01.2004 : In the Schedule-I,
serial number 108 has been substituted. The amendment has been made effective
from 8th Day of January, 2004.
Notification No. 5/2004 Dated 08.01.2004 : In the Schedule
I,-
(i) at serial number 190, in column no.4 under the head
"Territorial Area", the entry namely, "600 037-OTA" has been
deleted;
(ii) at serial number 193, in column no.4 under the head
"Territorial Area", between the entries "600
034-Nugambakkam" and "600 038-ICF Colony", the following has been
inserted, namely:-
"600 037-Mogappair".
The amendment has been made effective from 8th Day of
January, 2004.
Notification No. 4/2004 Dated 08.01.2004 : The Central Board
of Direct Taxes has authorised the Chief Commissioner of Income-tax, Mumbai-IX,
to issue orders, in writing, for exercise of powers and performance of functions
under the Income-tax Act, 1961, concurrently by all or any of the Assessing
Officers as defined under section 2(7A) of the said Act, subordinate to him.
The amendment has been made effective from 8th Day of
January, 2004.
Notification No. 3/2004 Dated 08.01.2004 : In the Schedule-I
to the said notification, serial numbers 20 and 89 and the entries relating
thereto, have been substituted.
The amendments have been made effective from 8th Day of
January, 2004.
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CBEC Excise Tariff
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Circular No. 771/4/2004-CX Dated 16.01.2004 : Having regard
to the matter the two insertions i.e. Proviso (i) & (iii) in the
Notifications Nos. 49/2003-CE and 50/2003-CE vide amending Notification No.
76/2003-CE have been considered. Accordingly, different scopes of the two
provisos have been clarified :
(a) As the amending Notification No. 76/2003-CE was issued on
the 5th November, 2003, a period up to 30th day of November 2003 is permitted
for those eligible units which were already working under Notifications Nos.
49/2003-CE and 50/2003-CE both dated 10.06.2003 as on 5.11.2003 to exercise
their written option on or before the said date. If these units failed to submit
their option in writing on or before 30.11.2003, they were not eligible to the
benefit of the said exemptions.
(b) The eligible Industrial Units which had not been working
under Notifications No. 49/2003-CE and 50/2003-CE and who want to effect their
first clearance under exemption vide the said notifications in the current
financial year any time after the issue of Notification No. 76/2003- CE dated
5.11.2003, may exercise their option any time in the current financial year in
writing before effecting such first clearance. Thus, the time limit up to
30.11.2003 is not applicable to this category of industrial units.
Notification No. 04/2004 Dated 15.01.2004 : In the said
notification, in the Table, after S.No. 261 and the entries relating thereto, a
new entry with S. No. 261A and entries related to it has been inserted.
Circular No. 769/2/2004-CX Dated 09.01.2004 : It has been
clarified that in view of the provisions of Section 136(1) of Finance Act, 2001,
National Calamity Contingent Duty (NCCD) on Crude Petroleum Oil should be
charged only on the total quantity of Crude Petroleum Oil produced and supplied
from the oil field to the refineries.
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CBEC Customs Tariff
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Circular No. 04/2004 Dated 16.01.2004 : In the matter of
conversion of free shipping bill into drawback shipping bill is concerned, it
has been clarified that that there is no need for allowing conversion. However,
in terms of the proviso to Rule 12(1)(a) of the Customs and Central Excise
Duties Drawback Rules 1995, the Commissioner may examine and consider individual
requests on merits and facts in terms of the aforesaid provisions. The aforesaid
relaxation shall only apply in respect of drawback claims pertaining to All
Industry Rates of drawback and it would not apply to brand rate of duty
drawback, where rate is claimed in terms of Rule 6 or Rule 7 of the Customs
& Central Excise Duties Drawback Rules.
As far as conversion of free shipping bills into Advance
Licence/DEPB/DFRC shipping bills is concerned, clarification has been made that
conversion of free shipping bills into Advance Licence/DEPB/DFRC shipping bills
should not be allowed.
As regards permitting conversion of shipping bills from one
export promotion scheme to another is concerned, it has been clarified that such
conversion should only be allowed where the benefit of an export promotion
scheme claimed by the exporter has been denied by DGFT/MOC or customs due to any
dispute.
Notification No. 19/2004 Dated 13.01.2004 : In the said
notification, in the Table, against S. No.8 :-
(i) in column (2), for item no. (3), the following has been
substituted, namely:-
"(3) Skeet or trap or double trap machine with acoustic
release"; and
(ii) in column (3), in condition (a), for clause (ii) the
following has been substituted, namely:-
"(ii) the District Rifle Association which is controlled
by, or affiliated to, the State Rifle Association;".
Notification No. 18/2004 Dated 12.01.2004 : In the said
notification, in the Table :-
(i) against S.No.344, in column (3), against item No. (1),
for the entry in column (4), the entry "20%" has been substituted;
(ii) against S.No.344A, for the entry in column (4), the
entry "20%" has been substituted; and
(iii) against S.No.345, in column (3), against item No. (1),
for the entry in column (4), the entry "20%" has been substituted.
Notification No. 17/2004 Dated 12.01.2004 : The Central
Government has exempted the various goods from the customs duty to a certain
extent falling within the First Schedule to the Customs Tariff Act, 1975, when
imported into India.
Circular No. 03/2004 Dated 12.01.2004 : The Government had
revised the duty drawback rates in respect of knitwares /knitted garments
through Notification No.77/2003-Customs(N.T.), dated 18.9.2003. Then it has been
brought to the notice of the Board that in many field formations, the enhanced
drawback rates are being permitted from 18.9.2003 and not with effect from
7.4.2003. Also, in many formations, the EDI Directories have not been updated
thereby compelling the exporters to file supplementary drawback claims. It has
been represented that such a procedure is leading to delays. having regard to
the matter it has, therefore, been requested that the grievances of the
exporters on this account may be redressed urgently and necessary instructions
issued to the field formations.
Circular No. 02/2004 Dated 08.01.2004 : Chapter XA which
details the special provisions relating to Special Economic Zones was proposed
to be inserted into the Customs Act, 1962 vide section 126 of the Finance
Act,2002. It was supposed to come into existence from a date to be notified. So
far the said date has not been notified. Consequently, the proposed provisions
under the said chapter remain ineffective for the time being. Accordingly, the
amended provision of Duty Drawback Rules in this regard too cannot take effect
till such time. Accordingly it has been clarified that the instructions
contained in Circular No.24/2003-Customs, dated 1.4.2003, concerning payment of
duty drawback to the supplies from DTA Unit to the SEZ Unit, shall also become
operative from the date when Chapter XA of the Customs Act, 1962 comes into
effect.
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CBEC Customs Non Tariff
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Corrigendum Dated 12.01.2004 : In the notification, at pages
27 to 48 :-
at page 37 , in line 23, for " 5203" , read it as "
5603".
Corrigendum Dated 09.01.2004 : In the notification :
(i) in column (3) of Sl.No.2 , before the word "
Jalandhar" , the word " Chandigarh," has been inserted;
(ii) in column (3) of Sl. No. 31, after the words "
Central Excise " , the words " Jammu and Kashmir " have been
inserted.
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RBI
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Circular No. A.P.(DIR Series) Circular No. 58 Dated
16.01.2004 : It has been decided to grant General Permission to foreign
companies to establish Branch Offices/Units in Special Economic Zones to
undertake manufacturing and service activities, subject to the following
conditions:
(i)such units are functioning in those sectors where 100% FDI
is permitted,
(ii) such units comply with part XI of the Companies Act
(Section 592 to 602),
(iii) such units function on a stand-alone basis,
(iv) in the event of winding-up of business and for
remittance of winding-up proceeds, the branch/unit shall approach an Authorised
Dealer with the requisite documents prescribed under Regulation 6 (1) (iii) of
Notification No. FEMA 13/2000-RB dated 3rd May 2000.
Circular No. A.P.(DIR Series) Circular No. 57 Dated
13.01.2004 : It has been decided to allow resident corporates and registered
partnership firms to invest upto 100 per cent of their net worth in overseas JV/WOS
without any separate monetary ceiling, subject to reporting in form ODR.
Also, in order to enable the Indian companies to take
advantage of global opportunities and also to acquire technological and other
skills for adoption in India, it has now been decided to allow resident
corporates and registered partnership firms to undertake agricultural activities
overseas including purchase of land incidental to this activity either directly
or through their overseas offices (i.e. other than through JV/WOS) within the
overall limit available for investment overseas under the Automatic Route viz.
upto 100 percent of their net worth, subject to reporting in form ODR.
Notification No. DBS.FID No. C-11 / 01.02.00/2003-04 Dated
08.01.2004 : the guidelines on investment by the FIs in debt securities have
been finalised and are issued by RBI. The guidelines seek to address the risks
arising from investment in non-government debt securities, particularly through
private placement and would come into force with effect from April 1, 2004.
Notification No. IDMD 1/ (PDRS) 03.64.00/2003-04 Dated
07.01.2004 : It has been decided to review the existing capital adequacy
guidelines including the guidelines on risk management. RBI has also revised the
PDR-III return. The revised guidelines would become operational from the quarter
ending March 31, 2004. Besides, it has been decided to reduce holding period for
computing the capital charge for market risk to 15 days. The VaR number would
continue to be based on 99% one tailed confidence interval as at present.
Also, most of the primary dealers have already put in place
the internal models for measuring the VaR. Accordingly, keeping in view the
feedback received from PDs, it has been decided to withdraw the option of
maintaining capital charge at 7 (seven) percent on the portfolio, exclusively
for the market risk. PDs should henceforth compute the capital charge for market
risk using the standardized approach and the internal VaR model and the higher
of the two values should be taken as the capital charge for market risk.
Notification No. UBD.No. DS. PCB.Cir 29 /13.05.00/2003-04
Dated 05.01.2004 : It has been decided to raise the margin on all advances
against shares to 50 percent with immediate effect with no change in the quantum
of loan that can be granted. The margin of 50 per cent will apply to all fresh
advances against shares/debentures. The existing advances issued may continue at
the earlier margin until they come up for renewal.
Notification No. GSR13(E) Dated 01.01.2004 : In the Foreign
Exchange Management (Foreign currency Accounts by a person resident in India)
Regulations, 2000,
a) In Regulation 5, in sub-regulation (1), after sub-clause
(d) the following has been added namely;
"(e) received as the proceeds of life insurance policy
claims/maturity/ surrender values settled in foreign currency from an insurance
company in India permitted to undertake life insurance business by the Insurance
Regulatory and Development Authority."
b) (i) In Regulation 5A, in sub-regulation (1), the words
"A person resident in India" have been substituted by the words
"A resident Individual".
(ii) In Regulation 5A, in sub-regulation (1) after sub-clause
(g) a new sub clause (h) has been added.
These amending Regulations has already come into force on
their publication in the Official Gazette i.e. 07.01.2004.
Notification No. GSR12(E) Dated 01.01.2004 : In the Foreign
Exchange Management (Transfer or Issue of Security by a Person Resident outside
India) Regulations, 2000, in Schedule 2 :
(i) In paragraph 1, sub- paragraphs 1 and 2, have been
substituted;
(ii) For paragraph 2, a new paragraph has been substituted;
and
(iii) In paragraph 4 :
(a) sub-paragraph (1) has
been substituted;
(b) sub-paragraph (2) has been deleted; and
(c) sub-paragraph (3) has been re-numbered as
sub-paragraph(2).
These amending Regulations has already come into force on
their publication in the Official Gazette i.e. 07.01.2004.
Notification No. GSR11(E) Dated 07.06.2003 : In the Foreign
Exchange Management (Foreign Currency Accounts by a Person Resident in India)
Regulations, 2000, in the Schedule, in paragraph 1, in sub-paragraph (1) in the
table, in item 2, for the figure "70", the figure "100" has
been substituted.
These amending Regulations has already come into force on
their publication in the Official Gazette i.e. 07.01.2004.
Notification No. GSR10(E) Dated 05.06.2003 : In the Foreign
Exchange Management (Insurance) Regulations, 2000, Regulations 3 and 4 have been
substituted. These amending Regulations has already come into force on their
publication in the Official Gazette i.e. 07.01.2004.
Press Release No. 2003-2004/861 Dated 13.01.2004 : The policy
for overseas investment has been liberalized to allow Indian corporates/registered
partnership firms to invest in joint ventures (JVs)/ wholly owned subsidiaries (WOSs)
overseas upto 100 per cent of their networth without any separate monetary
ceiling. It has also been decided to allow Indian corporates/registered
partnership firms to undertake agricultural activities either directly or
through an overseas branch.
Press Release No. 2003-2004/846 Dated 09.01.2004 : The
Reserve Bank of India has appointed Shri P. K. Brahma as the Banking Ombudsman
for the state of Gujarat, Union Territories of Dadra and Nagar Haveli, Daman and
Diu with effect from January 7, 2004 with a view to provide to the bank
customers quick and low-cost redressal of grievances relating to banking
services.
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DGFT
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Circular No. 24(RE-2004)/2002-2007 Dated 14.01.2004 : It has
been decided to clarify that "the agency commission would be allowed for the
DEPB benefit if such commission is upto the limit of 12.5% of FOB value. Agency
commission exceeding this limit should be deducted from the FOB value for
granting benefit under DEPB Scheme."
Notification No. 27(RE-2004)/2002-2007 Dated 13.01.2004 : Yhe
Central Government has made the following amendments in Chapter -27 -Licensing
Notes of the ITC(HS) Classifications of Export and Import Items, 2002-2007
published on 31st March, 2002 as amended from time to time :
Import Licensing Note (1) will read as :
Import of Naptha is free. The provisions as stipulated for
import of Naptha for use in the power sector vide Public Notice No.
57(PN)/1997-2002 dated 5th December, 1997 stands withdrawn with immediate effect
and the withdrawal will be applicable only prospectively from the date of issue
of this Notification. Further, the above change will not alter the position of
applicability of the provisions of other statutory provisions relevant to the
subject.
Notification No. 26(RE-2004)/2002-2007 Dated 12.01.2004 : The
Central Government has amended the entry having Exim Code 81052030 in the ITC
(HS) Classifications of Export and Import Items, 2002-07 published on 31st
March, 2002 as amended from time to time.
Public Notice No. 38(RE- 03)/2002-07 Dated 09.01.2004 : The
Director General of Foreign Trade has made the amendments/deletions/corrections
and additions in the Handbook of Procedures, Vol.2, 2002-2007, as amended. In
the statement of Standard Input Output Norms as contained in the Handbook of
Procedures, Vol.2, 2002-2007, as amended, amendments/ corrections/ deletion at
appropriate places have been made.
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Ministry of Consumer Affairs, Food & Public
Distribution
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Order No. G.S.R. 17(E) Dated 08.01.2004 : The
Central Government has issued the Sugar (Price Determination For 2003-2004 Production)
Order, 2003 which has come into force from date of its publication in official
gazette i.e. 08.01.2004.
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Department of
Telecommunications
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Order No. SO45(E) Dated 09.01.2004 : The Central Government
has entrusted the additional functions to the Telecom Regulatory Authority of
India, established under Sub-section (1) of Section 3 of the Act, in respect of
broadcasting services and cable services.
Notification No. SO44(E) Dated 09.01.2004 : The Central
Government has notified the broadcasting services and cable services to be
telecommunication service.
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Ministry of Environment
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Notification No. SO 69(E) Dated 15.01.2004 : In the
notification, Serial No. 1A and the entries relating thereto, have been deleted.
Also, Serial No. 1 and the entries relating thereto, have been substituted by
the new entry.
Notification No. SO15(E) Dated 06.01.2004 : In the
notification, at page 4, for "Amendment Rules, 2001", read it as "Amendment
Rules, 2002".
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Press Information Bureau
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Fixation Of Prices Of Bulk Drugs
Carbamezapine, Aspirin, Analgin, Doxycycline HCL And Spironolactone
Dated 16.01.2004 : NPPA has revised the price of bulk drugs
Carbamezapine, Aspirin, Analgin, Doxycycline Hcl and Spironolactone. The revised
notified prices shall become effective within 15 days from the date of
notification in the Gazette. All the manufacturers of the formulations utilizing
the drug in their scheduled formulations are advised to follow the provisions of
DPCO, 1995 with regard to pricing of the derivative formulations.
Dated 15.01.2004 : The Center will soon be coming out with a
National Environment Policy. The draft policy which has been formulated by The
Energy and Resources Institute (TERI) is expected to be finalized by May this
year for consideration by the Union Cabinet.
Dated 13.01.2004 : The Ministry of Railways has issued orders
introducing Voluntary Retirement Scheme (VRS) for Loco Pilots (Drivers) and
Trackmen (Gangmen) in the age group of 50 to 57 years with immediate effect. The
VRS has been framed keeping in consideration physical fitness caused by
advancing age and reflexes of Loco Pilots and Trackmen deteriorating to cause a
safety hazard. Loco Pilots are directly responsible for the running of trains
and Trackmen for the proper maintenance of tracks. The two categories work in
conditions in which fatigue sets in earlier than the staff working indoors or
within station limits or in depots and workshops.
Dated 09.01.2004 : The Government has issued the guidelines
for further wage revision for the workmen in Central Public Sector Undertakings
(CPSUs) who opted for five year periodicity of wage revision. The period of five
years in respect of those workmen in the CPSUs who opted for a five-year
periodicity expired on 31.12.2001.
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Supreme Court |
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An appeal was preferred before
Hon'ble Supreme Court to decide, whether teachers as a Class fall
within the definition of 'employee' as contained in Section 2(e) of the
Payment of Gratuity Act, 1972 and hence can raise claim to gratuity
under the Act. A notification was issued in exercise of powers under
Section 1(3)(c) of the Payment of Gratuity Act, 1972, on 03.04.1997,
whereby the benefit of Gratuity Act was extended to educational
institutions in which ten or more persons are employed or were employed
on any day preceding 12 months. It is contented that the only
beneficial effect of the this Notification is that such non-teaching
staff of educational institutions as answer the description of any of
the employments contained in the definition Clause 2(e), would be
covered by the provisions of the Act.
Supreme Court ruled that
teachers are not entitled to gratuity benefit because Payment of
Gratuity Act, 1972, does not classify them as employees as defined u/s
2 (e) of the 1972 Act. The contention that teachers should be treated
as included in expression 'unskilled' or 'skilled' cannot, be accepted
as 'teachers' who are mainly employed for imparting education do not
answer description of being employees who are 'skilled,' 'semi-skilled'
or 'unskilled.' These three words used in association with each other
intend to convey that a person who is 'unskilled' is one who is not
'skilled' and a person who is 'semi-skilled' may be one who falls
between two categories meaning he is neither fully skilled nor
unskilled. In construing the above-mentioned three words, the rule of
construction noscitur a sociis may be applied. The bench further
clarified that a trained teacher is not described in industrial field
or service jurisprudence as a 'skilled employee'. Such adjective
generally is used for employee doing manual or technical work.
Similarly, the words 'semi-skilled' and 'unskilled' are not understood
in educational establishments as describing nature of job of untrained
teachers.
However, the Apex Court said
that the State Governments could frame separate rules to extend the
benefit to them. The Bench clarified that it is for the Legislature to
take cognizance of situation of such teachers in various establishments
where gratuity benefits are not available and think of a separate
legislation for them in this regard - Appeal Dismissed.
Interpretation of Section
149(2)(a)(ii) vis-à-vis the proviso appended to Sub-sections (4) and
(5) of the Motor Vehicles Act, 1988 is involved in this batch of
petitions filed before Hon'ble Supreme Court. The question was whether
an insurer can avoid its liability in the event it raises a defence as
envisaged in Section 149(2) of the Act corresponding to Sub-section (2)
of Section 96 of the Motor Vehicles Act, 1939. In the present case it
was found that the accident was caused solely because some unforeseen
or intervening causes like mechanical failures and similar other causes
having no nexus with driver not possessing requisite type of licence.
The Bench held that an Insurer
is entitled to raise a defence in a claim petition filed under Section
163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in
terms of Section 149(2)(a)(ii) of the said Act. Further Apex Court said
that mere absence, fake or invalid driving licence or disqualification
of the driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. To avoid its liability towards insured, the insurer has
to prove that the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling the condition of
the policy regarding use of vehicles by duly licensed driver or one who
was not disqualified to drive at the relevant time. The Insurance
Company can however with a view to avoid its liability must establish
'breach' on the part of the owner of the vehicle.
Apex Court however underlined
that whereon adjudication of the claim under the Act the Tribunal
arrives at a conclusion that the insurer has satisfactorily proved its
defence, the Tribunal can direct that the insurer is liable to be
reimburseSd by the insured for the compensation and other amounts
recoverable on a certificate issued by the Tribunal to the Collector in
the same manner under Section 174 of the Act as arrears of land revenue
- Petitions Dismissed.
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