Legislative and Regulatory Update
You now have the option of customizing your manupatra round-up .This means that you get updates on the areas of interest that you select .You may change your preferences at any time you wish to. If you do not customize your round up you will continue to get the updates on all areas
To customize your round-up now click here.
_____________________________________________________________________
India Centric Online Legal & Business DatabaseBringing forth new efficiency and unparalleled results to research efforts.
In This Issue [No.87] May 30, 2004
International SEBI CBEC Customs Tariff RBI DGFT Ministry of Communication and Information Technology Ministry of Labour Ministry of Power Supreme Court High Courts
Site Links
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.
Cases
Source: Westlawinternational.com
Criminal Justice: Habitual criminal adjudication was not invalid on the basis that the trial transcript was missing.
Defendant failed to establish that his habitual criminal adjudication was invalid on the basis that a transcript of the first day of the two-day bench trial was unavailable for purposes of appeal. The trial court held a hearing to reconstruct the missing record, and the transcript of that hearing, along with the transcript of the closing arguments from the habitual criminal trial, supported the accuracy of the trial court's reconstruction.
People v. Jackson
Native Americans: Federal courts lacked jurisdiction over Indian tribe's internal disputes.
Federal courts lacked jurisdiction in an action brought by individual members of the Catawba Indian tribe, who alleged that the tribe's leadership was acting improperly in its control over the tribe's assets and affairs. Under the terms of a Settlement Agreement between the tribe, the United States, and the State of South Carolina, the tribe had, pursuant to its own sovereign powers, determined that until it established its own tribal court, all civil actions involving its internal matters were to be brought in South Carolina state courts.
Wade v. Blue
Commercial Law: Automobile lessee was "consumer" under Magnuson-Moss Act.
An automobile lessee qualified as a "consumer" who was entitled to enforce a written warranty, under the Magnuson-Moss Act. The underlying sale from an automobile supplier to the lessor was made in an effort to facilitate the lease, and the issuance of the warranty accompanied the sale. The lessor explicitly transferred its rights in the warranty to the lessee during the effective period of the warranty.
Peterson v. Volkswagen of America, Inc.
Immigration: Elimination of relief from deportation could be retroactively applied to aliens convicted after trial.
The provisions of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) precluding an alien who was removable because of a conviction for an aggravated felony from applying for discretionary relief from deportation could be applied retroactively to an alien who was convicted following trial, rather than pursuant to a guilty plea, prior to the statutes' enactment. The court declined to extend INS v. St. Cyr, in which the Supreme Court held that these laws might not be applied retroactively to aliens who pleaded guilty to deportable offenses prior to their enactment.
Thom v. Ashcroft
Labor and Employment: Employer was required under agreement to provide lifetime health care benefits to employees.
A district court found, in an action under the Labor Management Relations Act (LMRA) and the Employee Retirement Income Security Act (ERISA), that retirees of the J.I. Case Company were entitled, under the terms of group insurance plans negotiated by Case and a union, to fully-funded lifetime health benefits. The plans provided the retirees with health benefits without expressly limiting their duration. The parties' agreements tied eligibility for health benefits to eligibility for pension benefits. Language reserving to the employer the right to change the plan could not be considered separately from the language of summary plan descriptions. Furthermore, extrinsic evidence indicated the parties' intent to provide lifetime benefits.
Yolton v. El Paso Tennessee Pipeline Co.
Torts: Police chief did not owe duty of care to protect detective from off- duty acts of police sergeant.
A police chief did not owe a duty of care, for negligence purposes, to a police detective to protect him off-duty from acts of a police sergeant, and thus was not liable to the detective for injuries sustained during an off-duty physical altercation between the detective and the sergeant. The chief and sergeant, as supervisor and subordinate, did not have a special relationship that created a duty on the chief's part to control the sergeant's off-duty behavior, and while the code of conduct allowed disciplinary action for off- duty conduct, it did not impose any affirmative obligation on the chief's part to enforce the code of conduct's provision.
Murdock v. Croughwell
Antitrust: Jury instruction that statement constituting criminal threat should be viewed with caution was not required.
The trial court was not required to instruct the jury that a defendant's out-of-court admission should be viewed with caution in a prosecution for making a criminal threat, where defendant's words threatening to shoot a bank teller constituted the crime itself.
People v. Zichko
Antitrust: NFL's bar on drafting undergraduate players did not violate Sherman Act.
The National Football League's (NFL) rule limiting eligibility for the NFL entry draft to players three full college football seasons removed from high school graduation addressed a mandatory subject of collective bargaining. Thus, it fell within the scope of the nonstatutory exemption to antitrust review under the Sherman Act. The rule represented a condition for initial employment. It also had tangible effects on the wages and working conditions of current NFL players.
Clarett v. National Football League
Commercial Law: Nonresident plaintiff could maintain action under state Consumer Fraud Act.
A nonresident plaintiff has standing to bring a private cause of action under the Illinois Consumer Fraud and Deceptive Business Practices Act, if the state has sufficient contacts to the plaintiff's claim. The state had sufficient contacts to a nonresident insured's consumer fraud claim against a firm that provided total-loss valuation services for an automobile insurer. The firm's alleged policy and practice of intentionally undervaluing totaled vehicles in order to obtain more insurance company business was purportedly designed and implemented by the firm at its principal office in Illinois.
Bunting v. Progressive Corp.
Business Organizations: Merging corporation breached agreement prohibiting change in capitalization of corporation by approving merger.
A merging corporation breached a stock option and restriction agreement which prohibited a change in the capitalization of the corporation by approving a merger without the prior written consent of an optionee. The consolidation of two companies' assets, liabilities, and stocks pursuant to a merger necessarily involved a change in the amount and character of stocks, bonds, retained earnings, and other funds, possessed by the businesses participating in the merger.
Lee v. Scarborough
News
Russia's Richest Appears In Court
Russia's richest man Mikhail Khodorkovsky appeared at a court hearing in Moscow ahead of his trial for tax evasion and fraud. Lawyers say the prosecution against him is political because he funded opponents of President Vladimir Putin. Yukos, the oil firm Mr Khodorkovsky once headed, is also going to court to challenge a massive tax bill which it says could lead to bankruptcy.
Jail Move Rejected By Genocide Lawyers
Lawyers defending those accused of masterminding Rwanda's genocide have condemned talks about moving them to prisons in Rwanda saying that members of Rwanda's government are also accused of committing war crimes. This has come in the wake of United Nations officials being in Rwanda to discuss the possible transfer of those found guilty of genocide, from the UN tribunal in Arusha, Tanzania.
Oregon Euthanasia Defended By Court
A US appeals court has blocked attempts by the Bush administration to stop Oregon doctors helping terminally ill patients commit suicide. At least 170 people have used Oregon's law to commit suicide since 1998. Attorney General John Ashcroft had ordered doctors in the state not to comply with a law allowing them to prescribe lethal doses of medication. But by a two-to-one decision, judges on the Ninth Circuit Court of Appeals ruled Mr Ashcroft had exceeded his authority.
Conviction, For Australian Found Guilty Of Embassy Plot
Jack Roche, a British-born Muslim convert has been convicted of plotting to blow up Israel's embassy in Australia after he changed his plea to guilty. He had earlier told the court that he agreed to conduct surveillance of the embassy for al-Qaeda and Asian militant group Jemaah Islamiah (JI). He further said that he had feared for his life if he did not carry out the task, but had never agreed to bomb the building.
Australian Prime Minister Asks Parliament To Amend Law To Prevent Gay Marriage
Prime Minister John Howard has asked the Parliament to amend the State law to specify that marriage must involve a man and a woman, and also to stop gay couples adopting foreign children. The objective is to Australia's marriage law clarified to stop homosexual couples getting married. Although at present in Australia, homosexual partners cannot marry. But some have done so overseas and asked Australia's courts to recognise their union.
Death penalty for Tokyo attack
Yoshihiro Inoue, a former Japanese cult member who escaped the death penalty four years ago on the grounds that he did not personally release the poisonous sarine nerve gas, has been sentenced to death over the 1995 Tokyo subway gas attack. This came after a judge's ruling that, as a co-ordinator of the attack, he was just as guilty as those who carried it out. Twelve people died in the gas attack.
Hardline Iranian Parliament Holds Its Opening Session
The new conservative-dominated Iranian parliament, elected in a controversial vote in February, has held its opening session. Since more than 2,000 reformist candidates were banned from standing in the polls, the balance of power has shifted to conservative opponents of President Mohammad Khatami.
Jackson's Trial Date Set In September
A tentative date of 13th September in singer Michael Jackson's child abuse case has been set by the judge for the trial although the singer has denied all the charges against him. He has pleaded not guilty to 10 child molestation charges, including a charge of conspiracy to abduct a child.
Pinochet's Immunity Lifted By Court
The former military leader Augusto Pinochet has been stripped of his immunity from prosecution by a Chilean court. This step will pave the way for his trial on charges of human rights abuses during his 1973-1990 rule, a regime which saw the killing of thousands.
Secondary Market Division
Warning issued to M/s. Bakliwal Investment, Member of National Stock Exchange
PR No.115/2004 Dated May 25, 2004 : The Securities and Exchange Board of India (SEBI) has passed an order dated May 18, 2004, warning M/s. Bakliwal Investment (SEBI Reg. No. INB230922920) member of the National Stock Exchange for irregularities in maintenance of books of accounts, irregularities in issuance of Contract Notes, delay in payment of consolidated stamp duty, misuse of client accounts by adjusting inter client balances, non-segregation of accounts, non-collection of margins etc.
Extension of Time Limit for Disposal of Unclaimed/ Uncleared Cargo Lying with the Custodians
Circular No. 35/2004 Dated 20.05.2004 : A procedure was prescribed for disposal of unclaimed/uncleared cargo landed upto 31.3.2003 and lying with the custodians, whether Public Sector or Private Sector, at Air Cargo Complexes/ Ports/ICDs/CFSs Vide CBEC Customs' Circular No.7/2004-Cus dated 28.1.2004. As a result, representations were received by the Board from custodians of the uncleared/unclaimed goods for extension of the time limit of completion of process of disposal, i.e, 30.4.2004. The Board vide Circular No. 35/2004 dated 20.05.2004 has decided to extend the time limit for completing the process of disposal of the uncleared/unclaimed goods landed upto 31.3.2003 by the custodians from 30.4.2004 to 31.12.2004 and Public Notices have been issued for the benefit of the trade, particularly the custodians.
Posting of Cost Recovery Officer in EOU/EHTP/STP
Circular No. 36/2004 Dated 24.05.2004 : The EOUs and EHTP/STP units have been given an option of either using the services of Customs and Central Excise Officers on payment of cost recovery charges or on payment of Merchant Over Time vide Circular No 31/2003-Cus dated 7th April, 2003. In the said circular it was also clarified that Customs /Central Excise Officer already promoted against cost recovery posts will not be reverted back but will continue to function in higher cost recovery posts till these officers get promotion against a permanent post in their own cadre. The purpose of this was to limit the scope and extent of exercising the "MOT" by assessee.
Vide Circular No. 36/2004 Dated 24.05.2004 it is clarified that as per Board's guidelines issued under F.No. A-11018/7/90-Ad.IV dated 2-5-1990, cost recovery posts are created/sanctioned on a yearly basis only. For continuation of cost recovery officer beyond a period of one-year, clearance/sanction is required from IFU. Hence, in all such cases, where there is requirement to continue the cost recovery officers beyond one year, the concerned Commissionerate would be required to take prior sanction of IFU. It is further clarified that where an officer posted against a cost recovery post attends or is assigned to more than one EOU, the cost of the post shall be equally shared among all such EOUs. This will apply to cost recovery charges payable for the year 2004-2005.
Housing Loan in Rupees to NRIs/PIO- Foreign Exchange Management (Borrowing and Lending in Rupees) Regulations, 2000
A.P. (DIR Series) Circular No. 93 Dated 25.05.2004 : By virtue of Regulation 8 of Notification No. FEMA 4/2000-RB dated May 3, 2000 issued under Foreign Exchange Management (Borrowing and Lending in Rupees) Regulations, 2000, an authorised dealer or a Housing Finance Institution in India approved by the National Housing Bank is allowed to provide housing loan to a non-resident Indian or a person of Indian origin resident outside India, for acquisition of a residential accommodation in India. The installment of such loans, interest and other charges, if any, are required to be paid by the borrower either by way of inward remittance through normal banking channel or by debit to his NRE/FCNR (B)/NRO/NRNR/NRSR account or out of rental income derived from renting out the property acquired by utilisation of the loan.
The RBI through A.P.(DIR Series) Circular No. 93 Dated 25.05.2004 issued under sections 10(4) and 11(1) of the Foreign Exchange Management Act, 1999 intends to further liberalise the above provisions. As a further measure of liberalisation, it has been decided to allow the close relatives (as defined under Section 6 of the Companies Act, 1956) of the borrower in India to repay the installment of such loans, interest and other charges, if any, through their bank account directly to the borrower's loan account with the authorised dealer/housing finance institution.
Requirement of PHA release order for import of raw cashewnuts - exemption thereof
Circular No. 35 (RE-2003)/2002-2007 Dated 21.05.2004 : Several representations have been received from members of the trade that import of raw cashewnuts are subject to the requirement of a PHA release order in terms of the PFA Act, 1954. After consultations with Ministry of Health and Family Welfare and the Department of Revenue, it has now been decided to exempt all such imports of raw cashewnuts from the formalities of the PHA release order which are meant for re-processing and export. As such Customs Authorities will release such consignments on Customs Bond for re-processing as provided for in Clause (I) of Section 143 of the Customs Act, 1962.
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