Posts Tagged ‘news’

Litigation Watch

litigation watch

China’s blind activist lawyer, Chen Guangcheng, released from prison
Blind legal activist Chen Guangcheng was freed Thursday after four years in jail, to find the Chinese civil rights movement he helped pioneer weak, but lawyers still in the fight.

Litigation Investment Fund

litigation investment fund

BlackRock Announces Investment Policy Changes for Certain Insured Municipal Closed-End Funds
NEW YORK–(BUSINESS WIRE)–BlackRock Advisors, LLC today announced that the Board of Directors/Trustees of each of 20 of its insured closed-end funds (the “Funds”) have approved changes to certain investment policies of the Funds. Historically, under normal market conditions, each Fund has been required to invest at least 80% of its assets in municipal bonds either (i) insured under an insurance …

Litigation Cases

litigation cases

Settlement offered in California rail crash
Commuter rail system Metrolink and its former train operating contractor Connex Railroad are offering to pay a $200 million settlement to victims and families of a deadly 2008 crash, according to a Wednesday filing in the U.S. District Court.

Litigation Liability

litigation liability

do to the fact that you can now return your empty liquor bottles they are putting things on to read?

Due to increasing products liability litigation, American liquor manufacturers have accepted the FDA’s suggestion that the following warning labels be placed immediately on all alcoholic beverage containers:

lol pretty good! 8/10

Business Litigation

business litigation

Business Law and Business Litigation in South Florida

Every business needs legal counsel and hiring a proven business attorney to advocate for and protect the interests of your company saves money and brings peace of mind. There are an unlimited number of situations in South Florida’s commercial environment that involve business and legal procedures, but the panorama can be broken down into traditional categories.

Whether the subject matter involves services or goods, agreements are an indispensible component to business transactions. In fact, it is no exaggeration to say that the art of drafting and interpreting contracts is the foundation of all business law.

One of the major functions of the business law practitioner is to provide comprehensive and accurate review of the provisions to an agreement and ensure that the parties understand the terms of the transaction into which they are entering. Similarly, a trained business attorney is skilled at listening to the parties and writing contractual clauses that clearly and precisely reflect their intentions. The attorney’s ability to accomplish these tasks directly bears on both the likelihood of disputes arising between the parties down the road and the possibility of incurring penalties as a result of non-compliance with rules and regulations.

Bear in mind that parties to an agreement will always have at least some adverse interests. Accordingly, in most instances contracts should be reviewed, negotiated, and/or drafted by separate counsel representing each party individually. The reality is that the party with the more skilled business lawyer is likely to come away with certain advantages.

Another real-life consideration is the business attorney’s demeanor. Business negotiations are a very delicate matter. One of the fears business professionals have is that after they have laid the groundwork for a business relationship with another party, their attorney will show up and wreck the deal by aggressively seeking more favorable terms and/or by bringing up issues that lead to conflict. To be fair to the attorney, he or she is only trying to look out for the client in this situation. However, the bottom line for the client in such a case is that the deal is gone. It requires a certain amount of wisdom and grace on the part of business counsel to ascertain the situation, weigh the consequences of making certain statements against not making them, and choose the appropriate comportment in order to walk the fine line that leads to true advocacy of the client.

The subject of business litigation is one that must be fully and frankly considered since business ventures and business relationships often do not work out as planned. Some business attorneys focus their practice on litigation and dispute resolution. Such practitioners are business litigators, and they have a different skill set from the transactional lawyers that draft and negotiate contracts.

First, the steps involved in litigation are complex, and failure to following proper procedures invariably leads to delay, expense, and/or defeat. To further complicate matters, there are several different codes of civil procedure that apply depending upon the issue, amount in controversy, and the county. Many times you may need a business attorney just to determine in which courthouse to file the lawsuit.

A business litigator knows the correct legal forms to use and the proper procedures for each courthouse. Also, the litigator is adept at presenting the facts of the case and the legal support for the client’s claim both on paper, in the form of a pleading, and before a judge, in the form of oral arguments. Each of these can be daunting tasks for a business professional without legal training and experience. Where the amount of money in question is relatively small (under $5,000 in Florida’s Tri-County), the business professional may bring the matter in Small Claims Court pro se, where some judges may have more patience with non-lawyers. Many times, however, it is a bad idea to go into even a small claims matter without a qualified business attorney. Some judges dislike non-lawyers representing themselves or their companies because they invariably make mistakes and end up wasting the court’s time. Once the amount in controversy gets over a certain limit (over $15,000 in Florida’s Tri-County), the court will require that business entities be represented by legal counsel and failure to do so will mean losing the case.

About the Author

To find out more about HLA visit http://harringtonlawassociates.com Krammel is an Online Social Media Marketing Expert, building customized Organic Social Media System that help small business owners present themselves as the expert in their industry! Learn more at: www.PumpUpYourWebsite.com

Business briefs: Brokerage names new vice president
Rodney Delson has joined NAI Capital’s Westlake Village office as senior vice president. Delson brings more than 25 years of experience to the Encino-based commercial real estate brokerage and will specialize in multifamily investments in Los Angeles County.

Litigation In House Counsel

litigation in house counsel

The Importance of Secure and Fast Legal Copy for Attorney Services

Secure and fast legal copy for attorney services is crucial in order to keep intact the integrity of a law firm and its cases. Litigation always requires voluminous legal scanning and legal document duplication, as well as copying and duplication of information contained in various other media such as audio tapes, film, digital files, cds or dvds. Law firms are obligated to protect the privacy of their clients’ information. This should be guaranteed a hundred percent not just for the case but even beyond it. The need for fast copy should, therefore, never be given priority over security. Using unsecured legal copy services in pursuit of speed is often the weak link that allows information leakage. When this happens, the case is jeopardized and the law firm not only loses but also becomes liable for not having secured the lost information. Such liability could sometimes mean having to pay in millions.

The liability of law firms stems from the existence of several laws covering privacy. Some of these laws are Fair Credit Reporting, Sarbanes-Oxley, Gramm-Leach-Bliley, FERPA, FACTA, GLB and HIPAA. To protect itself, a law firm should only go for legal scanning and legal document duplication services that are Fair Credit Reporting, Sarbanes-Oxley, Gramm-Leach-Bliley, FERPA, FACTA, GLB and HIPAA compliant, ensuring not just secure copying and duplication but also secure data destruction upon disposal.

CopyScan is one of those companies that offer secure and fast legal copy services. This is made possible since these are all done in house. The company has been working on litigation copying, opposing counsel service and trial exhibits for over ten years and among its clients are the largest law firms in the vicinity of Fort Lauderdale, Florida. It supports attorney services as a highly trusted neutral third party, taking on tasks like picking up original documents from the opposing counsel, doing legal scanning and legal document duplication and returning them safely in original condition. It can also do the same legal scanning and legal document duplication for documents that then need to be delivered to opposing counsel.

CopyScan also does bankruptcy mail outs for attorney services. This involves copying all relevant documents, processing them accordingly and mailing them out to creditors. The process accurately complies with the client’s service list and is monitored and controlled strictly in order to merit the accompanying guarantee and certificate of service. It can be done twenty four hours a day, seven days a week.

Indeed full scanning, copying and printing services are offered by CopyScan. Advanced scanning and OCR technology is used in its scan to file services and scan to print services. The scanned files are subsequently systematically sorted and archived as searchable files. All legal documents can be labeled using electronic Bates labeling.

The copying services of CopyScan cover documents of all sizes, including land surveys and blueprints, as well as audio and video materials. Documents can be copied in full color and can be enlarged as necessary. Audio and video files in any standard format can de copied and duplicated in the same format or transferred to a different format. Sensitive material that cannot be taken out can be copied on site.

The printing services of CopyScan use high speed digital color printers that can print high resolution PDF and TIFF files.  The company also offers binding and finishing for the materials it prints.

With its technological capacity and long experience, CopyScan offers law firms the most secure and the fastest scanning, copying and printing services. The importance of such secure and fast legal copy for attorney services goes beyond winning cases. It ensures the credibility of the law firm itself and its excellent standing in its field.

attractiveness in corporate law?

Hello.
I am an average-looking woman with high ambitions in pursuing a career in litigation or corporate law.
With all the studies popping up about how attractive women are given preference over not-that-attractive women, I am scared.
I worked very hard all through out school (I’m in college right now) and plan on being independent and able to take care of myself without financial worry.
Even if I dress and groom well, will I be penalized because of my face?
I want to make partner one day, but if I don’t, then are my back-ups of legal counsel or “in-house” attorney jeopardized also because of my face?
I am on a freshman in college, but I plan on interning or just volunteering this summer.
*only–not “on”

Please note that “Average look” and “Professional achievement” are NOT AT ALL CONNECTED !!.

Flavor Flav ,Steven Tyler,Keith Richards,,Prince Charles are some of the famous People in various high profile occupations who made it big without the benefit of classic good looks.
Please shed your complex and you will shine as one of the best attorneys !!!

Video: Another family files complaint in LMSD Webcam controversy, a second family of a Lower Merion School District student, an action claimed Tuesday that district officials spied on them issued by a school laptop computer.

Litigation Analytics

litigation analytics

Chemical Fingerprinting

3 TM International Consulting is able to offer sound services, professional and technical assistance in a diverse range of specialty environmental consulting services, which can provide valuable assistance in your litigation efforts. The 3 TM Consulting range of expertise includes, chemical fingerprinting, collection of multi-media environmental review, laboratory analytical testing, which is able to successfully determine and ascertain the chemical content presents within collected soils, as well as forensic chemical identification. As part of their serviced provided within the realm of chemical fingerprinting, 3 TM Consulting is able to assist with legal depositions, prepare courtroom exhibitions which will allow for a stronger environmental case, as well as provide expert testimony.

Chemical fingerprinting is used extensively within the environmental legality sector, this form of forensics. The legal projects undertaken by 3 TM Consulting have supported a large number of diverse clients within legal forums, and involving obtaining soils samples from the marked site, testing the samples in accordance to the multi-year field efforts, thus allowing a broad band of environmental data to be collected and presented. The data is then tested at our fully-equipped forensic laboratories and this point chemical fingerprinting of the samples and data is presented, to form part of an expert report, which is able to be presented within a Court of Law. The core focus of chemical fingerprinting is to determine the off-site migration of chlorinated solvents making their way into residential areas and properties, which in many cases may have devastating health-effects upon the residents within the areas.

It is the extensive knowledge and background that have allowed 3TM Consulting successfully defend a number of cases and provide worthwhile and expert testimony within a diverse range of litigation-driven environmental projects. Our testing and chemical fingerprinting carried out on the soil samples acquired from earmarked sites, have allowed us to uncover the presence of a range of chemicals and toxics, which have included, Benzene, Volatile and Semi-Volatile Hydrocarbons, Chlorinated Hydrocarbons, Polycyclic Aromatic Hydrocarbons (PAHs), Agent Orange, Toxic Metals and Metalloids, as well as Carbon Black and Sulfur Compounds, all of which have the ability to affect human and animal life, by way of ill-health and disease. In our quest to utilize and implement chemical fingerprinting, as well as a range of other sophisticated testing and analytical methods, 3TM Consulting is able to a broad-band of environmental services.

At 3TM Consulting, we are of the belief that our chemical fingerprinting is able to offer the layman with the expertise and professional assistance, in enjoying a safe, and toxic free environment, and as such in the words of Albert Einstein, “Concern for man and his fate must always form the chief interest of all technical endeavors. Never forget this in the midst of your diagrams and equations.” View our website, www.3tmconsulting.com, and learn more of our range of environmental services, as well as our use of chemical fingerprinting that is able to successfully determine the presence of harmful chemicals and toxins with soils.

Professional Environment Consulting services including Indoor Dust Cleanup, Litigation Support, Hazardous Waste Site Litigation, Environmental Consulting Expert, Chemical Fingerprinting .

Inuvo Reiterates Its Policy on Market Activity
CLEARWATER, Fla.–(BUSINESS WIRE)–Inuvo states that its policy is not to comment on unusual market activity or rumors.

Litigation Magazine

litigation magazine

Five Tarlow Breed Hart & Rodgers P.C. associates chosen as Rising Stars in Boston Magazine’s “Super Lawyers” issue

BOSTON, MASS.

 

Those selected include: Jennifer A. Civitella Hilario, of Somerville, previously named in 2008; Michael Dominick, of Boston; John D. Finnegan, of Pelham, New Hampshire, previously named in 2005, 2006, 2007 and 2008; Terrence M. Schwab, of Natick, previously named in 2008; and Emily C. Shanahan, of Wellesley, previously named in 2008.

 

Rising Star selections are based on a statewide survey of more than 37,000 attorneys. Candidates must be under the age of 40 and have been in practice for 10 years or less. Attorneys are evaluated based on peer recognition and professional achievement and then grouped and ranked by practice area. Those with the highest point totals are selected.

 

“We built our firm for the long haul. Doing that means retaining the best young legal talent out there,†said Richard P. Breed III, a member of the firm’s management committee. “So, while I know it’s personally gratifying to Jennifer, Michael, John, Terry and Emily to achieve this honor, the partners take even more pride and satisfaction in their selection because we’re not only thrilled for our co-workers, we’re growing future leaders of our firm.â€

 

For more information and the complete list of practice areas represented in Super Lawyers, please visit www.superlawyers.com.

 

About Tarlow, Breed, Hart & Rodgers, P.C.:

Formed in 1991, Tarlow, Breed, Hart & Rodgers, P.C. is committed to providing high quality, comprehensive legal services to its clients. Featuring a breadth and depth of experience and perspective usually found only at larger law firms, Tarlow, Breed, Hart & Rodgers. P.C. offers sophisticated legal counsel to entrepreneurs, businesses, individuals, families, and institutions.

 

Tarlow, Breed, Hart & Rodgers’ areas of expertise include corporate law and business transactions, litigation and dispute resolution, estate planning, taxation, real estate, municipal law, and hospitality law.

 

The offices of Tarlow, Breed, Hart & Rodgers, P.C. are located at 101 Huntington Avenue, Prudential Center, in Boston, MA 02199. For additional information, or to arrange for a consultation, please call 1-617-218-2000, e-mail info@tbhr-law.com, or visit www.tbhr-law.com.

 

I got published. Need help getting compensation.?

As I young child, I submitted a statement to a children’s magazine called “Dynamite.” In a weekly category called “Bummers” readers were encouraged to submit to bummers and the best 4 per month were chosen and published in animation. For instance a bummer consisted of this: “Isn’t it a bummer when”… and the readers submission would fill follow. i.e. Isn’t a nummer when your dog gets run down by the drugged up garbage truck driver? Usually they were not that or violent, but you get the point.

Read the submission rules. More than likely there was a clause the the effect that “All submissions become sole property of the magazine.” This translates as something like “Once you submit it, WE OWN it.” Even if I am wrong, the statute of limitations for suing has most likely expired. You COULD talk to a lawyer if you wish, but I doubt you can do anything.

Many lawyers honored Jacksonville Jacksonville attorneys were recently recognized by Super Lawyers and Elite Florida Trend Magazine's Legal. Both publications are observed for the peer-review formulas in the selection of its winners and the winners will be listed in the Daily Record in the coming weeks.

2010 Litigation Review Conference

2010 litigation review conference

State Laws and Employer I-9 Employment Verification Responsibilities

Many states have enacted “mini-I-9†laws. Employers, especially companies that operate in more than one state, must closely monitor their compliance with the employment eligibility and verification laws for each state in which they do business.

The most common regulation states have imposed on businesses in recent years is requiring employers to use the federal E-Verify system to confirm workers’ immigration status and employment eligibility or work authorization, specifically illegal immigrant employment eligibility, work authorization and immigration status.

E-Verify is an Internet-based system operated by Department of Homeland Security (DHS/U.S. Citizenship and Immigration Services (USCIS) in partnership with the Social Security Administration (SSA). E-Verify is currently free to employers and is available in all 50 states. E-Verify provides an automated link to federal databases to help employers determine employment eligibility or work authorization of new hires and the validity of their Social Security numbers.

Employers or “Designated Agents” (e.g., payroll companies) must register online and agree to the terms of participation to use E-Verify. [Registration includes agreeing to the DHS/Immigrations and Customs Enforcement (ICE) Memorandum of Understanding (MOU). A discussion of the ICE E-Verify MOU is outside the scope of this post.]

E-Verify will soon be required of all federal contractors. DHS is now promulgating “final” E-Verify regs. I present an E-Verify overview and update in this post.

(The National Conference of State Legislatures does a remarkable job of monitoring these new developments and I include a variation of their chart and summary of the new state legislation below.)

Review of Relevant State Laws

State Laws Requiring Use of E-Verify

Arizona

Arizona

The Arizona Fair and Legal Employment Act (HB 2779), enacted in 2007, prohibits employers from knowingly hiring unauthorized workers and requires all employers to use the Basic Pilot Program to verify employment eligibility. It establishes substantial penalties and threatens noncompliant employers with suspension and potential revocation of their business licenses. Effective date Jan. 1, 2008.


Colorado

Colorado HB 1343 (signed 6/6/2006) prohibits state agencies from entering into contract agreements with contractors who knowingly employ illegal immigrants and requires prospective contractors to verify legal work status of all employees. The contractor must confirm that the Basic Pilot Program has been used to verify the status of all employees. If the contractor discovers that an illegal alien is employed, the contractor must alert the state agency within 3 days.


Georgia

The Georgia Security and Immigration Compliance Act, SB 529, covered employment, enforcement, and benefits and was signed by the Governor on April 17, 2006. The bill requires public employers, contractors and subcontractors with 500 or more employees to participate in E-Verify for all new employees beginning July 1, 2007. The law is phased in for public employers, contractors and subcontractors with 100 or more employees effective July 1, 2008; and for all employers by July 1, 2009.


Idaho
Executive Order

On December 13, 2006, Governor Jim Risch issued an executive order requiring that state agencies participate in the E-Verify system. Also, all workers employed to the state through contractors must also be from companies that have been verified to have eligible employees.

Minnesota
Executive Order

Governor Tim Pawlenty issued an executive order on Jan. 7, 2008, stating that all hiring authorities within the executive branch of state government as well as any employer seeking to enter into a state contract worth in excess of $50,000 must participate in the E-Verify program. The Executive Order’s effective date is January 29, 2008.


Mississippi

Mississippi SB2988 (signed 3/17/08) requires public and private employers to participate in E-Verify. The phase-in period is: all government agencies and businesses with more than 250 employees by July 1, 2008; companies with 100 to 250 employees by July 1, 2009; those with 30 to 100 employees by July 1, 2010; and all remaining companies by July 1, 2011. An employer violating the law is subject to the cancellation of public contracts, ineligibility for contracts for up to three years, and loss of business license for up to one year. The law also makes it a felony to accept or perform employment knowing or in reckless disregard of the immigrant’s ineligibility to work, with penalties from one to five years of imprisonment and/or $1,000 to $10,000 in fines.


North Carolina

All state agencies, offices, and universities must use E-Verify, required by SB 1523 in 2006. This applies to employees hired on or after January 1, 2007, except for employees of local education agencies hired on or after March 1, 2007.


Oklahoma

The Oklahoma Taxpayer and Citizen Protection Act of 2007 (HB 1804) addressed multiple issues: transporting and harboring, driver’s licenses, public benefits, law enforcement and employment. It made it a felony to transport or harbor unauthorized immigrants, with exceptions for health or benefits guaranteed by federal law. It requires public employers, contractors and subcontractors to participate in a federal electronic employment verification system and requires income tax withholding for independent contractors who do not have valid Social Security numbers. The law became effective Nov. 1, 2007.


Rhode Island
Executive Order

On March 27, 2008,Governor Carcieri issued an executive order requiring executive agencies to use E-Verify; and for all persons and businesses, including grantees, contractors and their subcontractors and vendors to use E-Verify.


Utah

SB 81 was signed into law 3/13/08. The law address multiple issues, including driver’s licenses, law enforcement, harboring and transporting, public benefits and employment. It requires public employers to register and use the Basic Pilot program for new employees; state contractors must use Basic Pilot effective July 1, 2009. The law makes it a Class A misdemeanor to conceal, harbor, transport or shelter undocumented immigrants, though church, charitable and humanitarian assistance groups are exempted.

Encourages the Use of E-Verify (1)


Tennessee

HB 729, signed into law on June 26, 2007 and effective January 1, 2008 states that employers who “knowingly employ, recruit or refer for a fee for employment an illegal alien” are subject to a temporary suspension of their business license; repeat offenders are subject to a one-year suspension. Employers who comply with the requirements of the current I-9 process or who verify new hires through the E-Verify within 14 days of employment are shielded from sanctions.

One State Limits The Use of E-Verify

Illinois

Illinois enacted HB 1744, which bars Illinois companies from enrolling in any Employment Eligibility Verification System until accuracy and timeliness issues are resolved. Illinois also enacted HB 1743, which creates privacy and antidiscrimination protections for workers if employers participating in E-Verify don’t follow the program’s procedures.

State Laws Targeting Employers On Immigration Status

Current Litigation Over State Laws: Federal Pre-emption

Two lawsuits now making their way through the federal court system could restrict states’ ability to continue to crack down on businesses that hire unauthorized workers. One is a court challenge to the 2007 Arizona employer sanctions law filed by a coalition of Arizona trade groups. In February, a federal judge denied the coalition’s request to delay implementation of the law with a temporary restraining order, and the plaintiffs took their case to the U.S. Ninth Circuit Court of Appeals. Oral arguments are scheduled for this summer and a decision is expected in the fall.

Another lawsuit making its way through the federal courts originated last year in Hazleton, PA, where a local ordinance enacted in 2006 denies business permits to employers who hire illegal immigrants and fines landlords who rent to them. In a ruling issued last summer, a federal judge struck down the Hazleton ordinance, saying it treads on federal terrain and violates illegal immigrants’ constitutional right to due process.

The town is appealing the decision, and the case will be heard in the U.S. Third Circuit Court of Appeals this summer. A decision in this case is also expected in the fall.

If the two appellate courts hand down similar rulings; either both upholding the local laws, or both asserting federal authority, the battle over federal preemption could end there. But if the courts hand down opposing decisions – one supporting state authority and the other backing federal preemption – the debate will likely go to the Supreme Court. The consequence: no clear direction for state lawmakers for at least a year or two.

Many legal experts say the bills being passed in state capitals are not constitutional, and many of the new laws are being challenged in court. The U.S. Constitution gives federal law “supremacy†over state statutes. My personal understanding of the fundamental “pre-emption†issue is that the federal laws do not pre-empt these state laws. Frankly, this is a very complex constitutional issue.

The 1986 Immigration Reform and Control Act (IRCA) explicitly prohibits states from imposing sanctions on businesses that hire unauthorized workers. But one phrase in the 1986 law – a seven-word parenthesis allowing states some leeway in the matter of “licenses and similar laws†– has created a contested gray area.

Many states have taken the IRCA parenthesis to mean they have the authority to suspend or revoke the business licenses of employers who hire unauthorized workers. Businesses and many constitutional lawyers disagree.

“You have this complex overlay of statutes and regulations and court cases, and you’ve got this federalism question of what has traditionally been federal power and what the states can do,†Jan Ting, a Temple University law professor, told the Washington Post. “There could not be an area of law that is less clear than this.â€

Because states have until recently stayed away from imposing sanctions for immigration violations, federal preemption has rarely been tested and few court precedents exist.

Private Rights of Action

While E-Verify requirements have so far proven the most popular method to deter the hiring of illegal immigrants, some states are beginning to make use of another tool: giving employees a “private right of action.†Oklahoma was the first state to pass such legislation, in 2007, allowing fired U.S. workers to sue their employers if unauthorized workers were subsequently found to be working in their place. Mississippi, Utah and South Carolina followed with similar provisions this year, allowing fired workers to sue if they are then replaced by illegal immigrants. Some say the laws could open businesses to lawsuits if they employ any unauthorized workers, whether or not they have hired them to replace fired legal workers. Other states are expected to adopt this approach next year.

Also still in place are provisions mandating that all businesses in Arizona enroll in E-Verify and allowing prosecutors to investigate anonymous tips made against businesses alleged to be employing unauthorized workers.

State Felony Laws

Companies should also be concerned about a Mississippi law that makes it a felony for illegal immigrants to accept unauthorized employment. Violators are subject to imprisonment from one to five years and fines of between $1,000 and $10,000. And while the measure seemingly applies only to unauthorized workers, if I had clients who do business in Mississippi I would be strongly cautioning them. I have many clients, both individual and business, where the kind employer assists driving the very good employee to work because the employee does not have a valid state driver license because s/he lacks immigration status. In my opinion a business can be prosecuted for aiding and abetting a felony or harboring a felon under this law.

Oklahoma also imposed felony penalties, in 2007 – in that case, against anyone caught transporting, concealing, harboring or sheltering illegal immigrants in any location,

including any building or means of transportation. Utah, Missouri and South Carolina passed similar measures this year, and many fear the provisions could be used against employers who knowingly hire unauthorized workers.

Chatham Lodging Trust Announces Second Quarter Earnings Conference Call on Wednesday held for 11 August 2010 Chatham Lodging Trust, a hotel real estate investment trust focused to stay at upscale hotels and extended-premium-branded select-service hotels, today announced that in the second quarter 2010 financial report the results on Tuesday, the following 10 August 2010, the end of the market. Â On Wednesday, August 11, at 10 clock

Litigation Technology Jobs

litigation technology jobs

Job Work: Better Late Than Never

Job Work: Better late than never

Prepared By:

CA Pradeep Jain

Sukhvinder Kaur, LLB

Introduction: –

In this article, we are discussing the issue of eligibility of a jobworker in availing cenvat credit on inputs used by him in the manufacture of goods on jobwork basis. We have already written two articles on this issue. The first titled “Jobwork, Cenvat & Litigation-Good Job for Consultants” is already available on our website www.capradeepjain .com. In this article, we have discussed how the large demands have been created by the department under Rule 6 of Cenvat credit Rules. These huge demands, if confirmed, will lead to closure of the units. We have also discussed the various grounds available to assessee to fight this case. In the last, we came to the conclusion that these demands have created a very good job for consultants.

Thereafter, in second piece namely “Job Work and Reversal: All is well…” we have discussed in depth and told that all the grounds raised by the manufacturer were struck down by Higher forum. The Mumbai High Court decision has created havoc in the minds of the job workers. Later on larger bench decision in case of Sterlite Industries was upheld by the Mumbai High Court and relief was granted to the assessee.

Also, there is latest development on this issue. The Board has also come to rescue the poor manufacturers. There is proposal to amend the Rule 6 retrospectively and allowing thereby the benefit of proportionate reversal since inception of this Rule or even erstwhile Rule 57CC.

Further also, the Board has called the opinions from the field formalities to give their opinion as to amend the Rule 6(5) to provide that there is no need of reversal of Cenvat credit on inputs or input services if these are used in job work. We are throwing light on these latest developments in this article.

Start of the Controversy: -

To begin with, we are once again giving the brief idea about this controversy to the netizens for better understanding. Rule 6 of the Cenvat Credit Rules, 2004 provided that the cenvat credit will not be admissible on the inputs or input services which are used in the manufacture of exempted goods or which are used in providing the exempted services. The Rule 6 ibid also said that if the common inputs are used for manufacture of dutiable and exempted goods and the manufacturer is not able to maintain separate inventory then he has to reverse the cenvat credit at specified rate.

Controversy started in case of a job worker undertaking to manufacture goods on jobwork basis on behalf of the Principal Manufacturer. The jobworker would avail the benefit of Notification No. 214/1986-CE dated 25.03.1986 to remove the goods after processing without payment of duty. The Principal Manufacturer has undertaken the duty liability as per impugned notification and declare that the goods so cleared by the job worker will be further used by him in manufacture of his final products which will be cleared on payment of duty.

The job worker was taking cenvat credit on minor inputs/input services like oil, lubricants, telephone service used by him while manufacturing of goods on jobwork basis, the Department raised objection on availing of credit on the ground that he was clearing exempted job work goods.  The department raised the demand under Rule 6 and asked the job worker was required to pay an amount equivalent to 8%/10% of the sale value of exempted goods/exempted services. This was very harsh action by the department. In one of cases to which authors of this article has come across will show the high handedness of the department. The credit taken on common inputs was only Rs. 30, 000 but the demand raised was around Rs. 65 lakhs. Thus, havoc was created in the industry and especially amongst the jobworkers.

But the relief was granted by the Larger Bench of the Tribunal in case of Sterlite Industries (I) Ltd v/s Commissioner of Central Excise, Pune [2005 (183) ELT 353 (LB)]. The highest Tribunal in cases of Excise and Customs held that credit was admissible on the inputs used by the jobworker in processing goods on the ground that these are not exempted goods and duty was ultimately being paid on the clearance of finished goods. This decision has been given by the larger bench by applying the principles laid down by the Hon’ble Supreme Court in the case of Escorts Ltd. [2004 (171) ELT 145 (SC)]. The department into appeal against the decision of larger bench but the same has been set aside by the High Court of Mumbai. As such the relief was granted to the poor job workers.

New Developments: –

1. Retrospective amendment in Rule 6:-The first development was that this year budget has brought a retrospective amendment under Rule 6 of the Cenvat credit rules. There is provision of proportionate reversal is available under rule 6(3A). It was not available earlier. It is being incorporated since inception. Even it is being incorporated in old rules. Thus, if the manufacturer does the proportionate reversal and gives the certificate of Chartered Accountant then old demands will also be dropped. This is very welcome move by the Board. This will end the unnecessary litigation. It will be applicable not only to job workers but also to the others who are in fact manufacturing exempted and dutiable goods. If they do the proportionate reversal then the demands will be dropped.

But there is problem for the job workers in this scheme. The principal raw material is being supplied by the principal and they are not taking the credit on the same. They are taking the credit on small consumables like oil, lubricants and on small input services like telephone or mobile phones etc. But the reversal formula takes into account the credit taken on all inputs. This will also include the credit on raw material which is manufactured by him on his own account though these are not common inputs for the transaction of job worker. Thus, this amendment is not feasible for the job workers.

1. Proposal to amend rule 6(5):-The Board had vide its letter F. No. 267/12/2010-CX.8, dated 18.02.2010 asked the field formations to inform about the practice followed in respect of clearances by job worker without payment of duty under their jurisdiction. They have also been requested to give their opinion/views on the issue referring the legal provisions, judicial pronouncements etc. They are also required to furnish the details of any SCN/appeal pending on the issue.

The Board has asked for the said information as they have been asked to extend the benefit of Rule 6 (6) of the Cenvat Credit Rules, 2004 for the clearances made by the job worker. The Rule 6(6) reads as follows:-

(6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either-

(i) cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorized operations; or

(ii) cleared to a hundred per cent. export-oriented undertaking; or

(iii) cleared to a unit in an Electronic Hardware Technology Park or Software Technology Park; or

(iv) supplied to the United Nations or an international organization for their official use or supplied to projects funded by them, on which exemption of duty is available under notification of the Government of India in the Ministry of Finance (Department of Revenue) No.108/95-Central Excise, dated the 28th August, 1995, number G. S R. 602 (E), dated the 28th August, 1995; or

(v) cleared for export under bond in terms of the provisions of the Central Excise Rules, 2002; or

(vi) gold or silver falling within Chapter 71 of the said First Schedule, arising in the course of manufacture of copper or zinc by smelting; or

(vii) all goods which are exempt from the duties of customs leviable under the First Schedule to the Customs Tariff Act, 1975 (51 of 1975) and the additional duty leviable under section 3 of the said Customs Tariff Act when imported into India and supplied against International Competitive Bidding in terms of notification No. 6/2002-Central Excise dated the 1 st March, 2002 or notification No. 6/2006-Central Excise dated the 1 st March, 2006, as the case may be.

Thus, it provides an exception where the Rule 6 does not apply. Hence, they will include the job work under the same and there will not be any need to reversal and the credit will be available to the job worker. This is very welcome step taken by the Board. This will resolve the complete issue. The only thing we want to say is that the same should be done with retrospective effect as done in case of reversal of Cenvat credit. Otherwise, the field formation will confirm the demands of old periods. Secondly, it should be done at the earliest so that no further demands are being raised.

Furthermore, if it takes time to do this amendment then the Board may ask the departmental adjudication officers to follow the decision of larger bench of tribunal in case of Sterlite Industries which has been upheld by the High Court also. This will resolve the issue at the earliest.

Conclusion:-

Thus, it can be said that this whole controversy is leading towards the happy ending. The department is also willing to resolve the issue. The real proverb applies to this case is “Better late than never”.

However, we would like to add here that approach at Board level has also changed. We have seen the retrospective amendment to give refund of unutilized credit to exporters. Secondly, retrospective amendment for proportionate reversal for manufacturing using common inputs for dutiable and exempted goods. Next example of positive thinking is that the Board has asked views of all commissioners to resolve the issue of job worker.  We shall all appreciate this positive approach of the Board. We also pray to God to continue the same.

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Where St. Lucie candidates stand on the issues
Where St. Lucie County candidates stand on the issues.