# M/s Maa Mahamaya Alloys Pvt. Ltd v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 523
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-23
- **Case number:** Writ Tax No. 31 of 2021
- **Bench:** Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/m-s-maa-mahamaya-alloys-pvt-ltd-v-state-of-u-p-ors-49993
- **Pages:** 7

## Headnote

A. Tax Law - Seizure - GST Act,2017 -
Sections 67(1), 67(2), 75(13), 130(4) &
169 - The demand for tax can be
quantified
and
raised
only
in
the
manner prescribed in Section 73 or
Section 74 of the Act, as the case may
be. (Para 11)

As the entire tax has been determined and the
penalty has been levied only on the basis of a
survey by taking recourse u/s 130 of the GST
Act and not taking a recourse to Section 74, the
order impugned is clearly unsustainable. (Para
12, 13)
B.(1) The scope of Clause (ii) of subsection (1) of Section 130 is that any
assessee who is liable to pay tax and does
not account for such goods, after the time
of supply is occasioned, would be liable to
penalty under Clause (ii). The liability to
pay the tax arises at the time of point of
supply, and not at any point earlier than
that.

Section 130 of the GST Act contemplates and
provides for levy of the penalty, in the event,
any of the conditions so mentioned in Section
130(1) are made out. (Para 14)

On a plain reading of the allegations levelled
against the petitioner w.r.t. the improper
accounting of goods, the only stipulation
contained in Clauses (ii) and (iv) of sub-section
(1) of Section 130 can at best be invoked by the
department, however, in the present case, even
assuming for the sake of argument, that the
goods were lying in excess of the goods in
record, the case against the petitioner would
not fall under Clause (ii) of sub-section (1) of
Section 130.

B.(2) Penalty can be levied by invoking
Clause (iv) only when the department
establishes that there was contravention
of any provision of the Act or the Rules
coupled with the 'intent to evade payment
of tax'.

There is no such allegation in the show cause
notice or any of the orders. Clause (iv) of subsection (1) of Section 130 would not be
attracted in the present case. (Para 15)

C. Manner of service of notice in certain
circumstances - In terms of Clause (a) of
Section
169(1),
a
service
would
be
completed only when it is tendered to the
taxable person or on his Manager or
authorized representative. (Para 17)

Serving on the Accountant of the firm is neither
contemplated nor provided for u/s 169(1)(a)
and thus, the service as claimed by the
respondent on the Accountant cannot be held to
be a valid service, thus, the entire proceedings
are liable to be quashed. (Para 18)
524 INDIAN LAW REPORTS ALLAHABAD SERIES
D. Determination of value of the goods -
In Section 15 or the Rules framed
thereunder, there is no prescriptions for
valuation of the goods on the basis of eye
estimation as has been done by the
department and has been repelled by the
appellate authority. (Para 19)

Section 15 of the GST Act provides for valuation
of the taxable supply. In furtherance of the
provisions contained in the Act, Rules have been
framed and Rule 27 of the said Rules provides
for the manner of valuation of supply of goods
or services.

In the present case, the valuation of the goods
is required to be done in terms of the mandate
of Section 15(1) r/w Section 15(2) and Section
15(3). The appellate authority has erred in
repelling the valuation done on the basis of eye
estimation, however, has proceeded to value
the goods (although differently) at the appellate
stage without resorting to the mandate and
manner prescribed in Section 15 r/w the Rules.
(Para 19)

Writ
petition
allowed.
The
amount
deposited by the petitioner shall be
refunded subject to the outcome of the
demand quantified u/s 74 of the Act in
accordance with law. (E-4)

Precedent followed:

M/s Metenere Ltd. Vs U.O.I. & anr., Writ Tax
No. 360 of 2020 (Para 6)

Present petition challenges the order
dated 29.01.2019, whereby tax of Rs.
26,10,000/-, penalty of Rs. 26,10,000/-
and further fine of Rs. 25,000/-, total Rs.
52,54,000/- has been assessed against
the petitioner as well as the appellate
order dated 15.06.2020 whereby the
appeal preferred by the petitioner was
partly allowed.

## Text

4 All. M/s Maa Mahamaya Alloys Pvt. Ltd. Vs. State of U.P. & Ors.
523
extent as detailed hereinabove and F.A.F.O.
No. 196 of 1993 filed by Gaurav Jawarani
for enhancement of award is dismissed.
C. F.A.F.O. No. 193 of 1993 of the
Insurance Company is dismissed in light of
the observations made hereinabove and
F.A.F.O. No. 189 of 1993 filed by legal
heirs and claimants of Claim Petition No.
66 of 1992 is allowed.

The parties shall bear the respective
costs. The records of the Tribunal shall be
returned expeditiously.
----------
(2023) 4 ILRA 523
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.03.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ Tax No. 31 of 2021

M/s Maa Mahamaya Alloys Pvt. Ltd.
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Aloke Kumar

Counsel for the Respondents:
C.S.C.

A. Tax Law - Seizure - GST Act,2017 -
Sections 67(1), 67(2), 75(13), 130(4) &
169 - The demand for tax can be
quantified
and
raised
only
in
the
manner prescribed in Section 73 or
Section 74 of the Act, as the case may
be. (Para 11)

As the entire tax has been determined and the
penalty has been levied only on the basis of a
survey by taking recourse u/s 130 of the GST
Act and not taking a recourse to Section 74, the
order impugned is clearly unsustainable. (Para
12, 13)
B.(1) The scope of Clause (ii) of subsection (1) of Section 130 is that any
assessee who is liable to pay tax and does
not account for such goods, after the time
of supply is occasioned, would be liable to
penalty under Clause (ii). The liability to
pay the tax arises at the time of point of
supply, and not at any point earlier than
that.

Section 130 of the GST Act contemplates and
provides for levy of the penalty, in the event,
any of the conditions so mentioned in Section
130(1) are made out. (Para 14)

On a plain reading of the allegations levelled
against the petitioner w.r.t. the improper
accounting of goods, the only stipulation
contained in Clauses (ii) and (iv) of sub-section
(1) of Section 130 can at best be invoked by the
department, however, in the present case, even
assuming for the sake of argument, that the
goods were lying in excess of the goods in
record, the case against the petitioner would
not fall under Clause (ii) of sub-section (1) of
Section 130.

B.(2) Penalty can be levied by invoking
Clause (iv) only when the department
establishes that there was contravention
of any provision of the Act or the Rules
coupled with the 'intent to evade payment
of tax'.

There is no such allegation in the show cause
notice or any of the orders. Clause (iv) of subsection (1) of Section 130 would not be
attracted in the present case. (Para 15)

C. Manner of service of notice in certain
circumstances - In terms of Clause (a) of
Section
169(1),
a
service
would
be
completed only when it is tendered to the
taxable person or on his Manager or
authorized representative. (Para 17)

Serving on the Accountant of the firm is neither
contemplated nor provided for u/s 169(1)(a)
and thus, the service as claimed by the
respondent on the Accountant cannot be held to
be a valid service, thus, the entire proceedings
are liable to be quashed. (Para 18)
524 INDIAN LAW REPORTS ALLAHABAD SERIES
D. Determination of value of the goods -
In Section 15 or the Rules framed
thereunder, there is no prescriptions for
valuation of the goods on the basis of eye
estimation as has been done by the
department and has been repelled by the
appellate authority. (Para 19)

Section 15 of the GST Act provides for valuation
of the taxable supply. In furtherance of the
provisions contained in the Act, Rules have been
framed and Rule 27 of the said Rules provides
for the manner of valuation of supply of goods
or services.

In the present case, the valuation of the goods
is required to be done in terms of the mandate
of Section 15(1) r/w Section 15(2) and Section
15(3). The appellate authority has erred in
repelling the valuation done on the basis of eye
estimation, however, has proceeded to value
the goods (although differently) at the appellate
stage without resorting to the mandate and
manner prescribed in Section 15 r/w the Rules.
(Para 19)

Writ
petition
allowed.
The
amount
deposited by the petitioner shall be
refunded subject to the outcome of the
demand quantified u/s 74 of the Act in
accordance with law. (E-4)

Precedent followed:

M/s Metenere Ltd. Vs U.O.I. & anr., Writ Tax
No. 360 of 2020 (Para 6)

Present petition challenges the order
dated 29.01.2019, whereby tax of Rs.
26,10,000/-, penalty of Rs. 26,10,000/-
and further fine of Rs. 25,000/-, total Rs.
52,54,000/- has been assessed against
the petitioner as well as the appellate
order dated 15.06.2020 whereby the
appeal preferred by the petitioner was
partly allowed.

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Aloke Kumar, learned
Counsel for the petitioner and learned
Standing Counsel.

2. The present petition has been filed
challenging the order dated 29.01.2019
whereby tax of Rs.26,10,000/- has been
assessed to be payable by the petitioner and
penalty of Rs.26,10,000/- and further fine
of Rs.25,000/-, total Rs.52,54,000/- has
been assessed against the petitioner as well
as the appellate order dated 15.06.2020
whereby the appeal preferred by the
petitioner was partly allowed.

3. The facts in brief are that the
petitioner is a Company duly registered
under the GST Act. It is stated that the
material purchased by the petitioner are
duly reflected on the portal of the
department including the GSTR-3B. It is
alleged that on 29.09.2018, the Deputy
Commissioner, (SIB), Commercial Tax,
Mirzapur Division, Mirzapur in purported
exercise of powers under Section 67(1) and
67(2) of the GST Act inspected the
registered business premises and drew a
Panchanama on 29.09.2018 (Annexure
No.1). On the same day, a seizure memo
was also prepared, which is contained as
Annexure No.2 to the writ petition.

4. It is argued that the petitioner was
compelled to deposit an amount of
Rs.52,20,000/- for getting the seized goods
released. Thereafter, the petitioner was
served with summons on 29.09.2018 and
the petitioner was called upon to produce
the records relating to the purchase for the
year 2017-18 and 2018-19. The petitioner
was once again issued summons under
Section 70 of the Act on 27.12.2018
whereby certain documents were called
from the petitioner. The petitioner claims to
have produced the documents on the date
fixed, however, an order came to be passed
thereafter without issuance of any show
cause notice to the petitioner levying the
tax liability of Rs.26,10,000/- and further
4 All. M/s Maa Mahamaya Alloys Pvt. Ltd. Vs. State of U.P. & Ors.
525
an
amount
of
Rs.26,10,000/-
was
determined as penalty to be paid by the
petitioner and further a fine of Rs.25,000/-
was also imposed, thus, a total liability of
Rs.52,45,000/- was determined to be
payable under Section 130(3) of the GST
Act. As the petitioner had paid an amount
of Rs.52,20,000/-, the total balance amount
payable
by
the
petitioner
came
to
Rs.25,000/-. The said order was challenged
by the petitioner by preferring an appeal.
The said appeal was partly allowed by
means of the order dated 15.06.2020 and an
amount of tax assessed against the
petitioner was quantified at Rs.7,92,405/-
on which a like penalty of Rs.7,92,405/-
was imposed and thus, in terms of the
appellate order, the petitioner was required
to pay a total amount of Rs.15,84,810/-.
The amount paid by the petitioner in excess
was directed to be refunded in accordance
with law.

5. The contention of the Counsel for
the petitioner is that the order impugned as
well as the appellate order is bad in law for
the reasons more than one. He argues that
in terms of the mandate of the GST Act,
although a power of search and seizure is
conferred upon the authorities, the manner
in which the goods were held to be in
excess of the recorded goods, is wholly
arbitrary. He argues that the goods were
quantified only on the basis of the eye
estimation,
which
argument
of
the
petitioner was also accepted by the
appellate authority, as is clear from the
perusal of the appellate order. In the light of
the same, he argues that once the appellate
authority accepted the contention of the
petitioner that the valuation of the goods on
the basis of eye estimation was not
possible, the entire proceedings ought to
have been declared as null and void. He
further argues that even otherwise the
manner in which the appellate authority has
quantified (although reduced), the demand
against the petitioner has no foundation
whatsoever.

6. The Counsel for the petitioner
further argues that in any event while
proceeding to pass an order under Section
130 of the GST Act, no power is vested in
the authority to undertake the determination
of liability of tax, which can only be done
by taking recourse to Section 73 or Section
74 of the Act, as the case may be. He draws
my attention to the statutory provisions
contained in the GST Act and emphasises
on the provisions contained and elaborated
in Sections 67, 73, 74, 122 and Section 130
of the Act. He places reliance on the
judgment of this Court in the case of M/s
Metenere Limited vs Union of India and
another; Writ Tax No.360 of 2020, decided
on 17.12.2020. He further argues that after
the passing of the orders, on the same
grounds, proceedings have been initiated
under Section 74 of the Act and an order
has already been passed against the
petitioner, against which, the petitioner is
availing the remedies. He argues that the
same is not the subject matter of the present
writ petition and has been brought to the
notice of this Court only to apprise that no
penalty could have levied in view of the
mandatory provisions contained in Section
75 (13) of the GST Act.

7. During the course of the hearing,
this Court vide order dated 21.03.2023 had
called upon the Counsel for the respondent
to inform whether a show cause notice was
issued under Section 130(4) of the GST Act
or not? In response to the said order, the
learned Standing Counsel has produced the
instructions and argues that prior to passing
of the impugned order, a show cause notice
dated 27.12.2018 was issued to the
526 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner, which was served upon the
accountant of the firm/ company on
29.12.2018. Learned Standing Counsel has
also produced a copy of the show cause
notice. The said instruction and show cause
notice are taken on record.

8. The learned Standing Counsel
argues that the estimation of various goods
was done in the manner prescribed. He
further argues that at the appellate stage,
the contention of the Counsel for the
petitioner was partly accepted and with
regard to the demand quantified at the
appellate stage, the appellate authority had
applied its mind and arrived at a conclusion
with regard to the goods available and on
the said basis, the demand was quantified
and substantially released. He thus argues
that the writ petition is liable to be
dismissed, more particularly because no
reply to the show cause notice was given.

9. Considering the rival submissions
made at the bar, the following questions
which arise for determination;

(I). Whether tax can be assessed/
determined in exercise of powers under
Section 130 of the GST Act?

(II). Whether penalty can be levied only
on the allegations that at the time of
verification of goods, the goods in excess
were found at the premises?

(III). Whether the service of notice as
claimed by the respondent satisfies the
requirement contemplated under Section 169
of the GST Act?

(IV). Whether the valuation of goods
can be done on the basis of eye estimation
alone and on the basis of production capacity
and/ or the consumption of electricity etc?

10. The issue raised in the present
writ petition is being decided in view of the
fact that the appellate tribunal contemplated
under the Act has not yet been constituted.

11. The issue raised herein in Issue no.I
is marked resemblance to facts referred in the
judgment of this Court in the case M/s
Metenere Limited (supra) wherein on the basis
of a similar search conducted, the demand was
quantified. This Court after analysing the
provisions of the Act and the Rules applicable
held that for the infractions as contained in
Section 122 of the GST Act and specified in
Column ''A' of paragraph 35 of the said
judgment M/s Metenere Limited (Supra) held
that penalty has to be Rs.10,000/- or the
amount of tax evaded whichever is higher,
whereas for the infractions specified in
Column ''B' of paragraph 35, the penalty that
can be imposed is Rs.10,000/- only. This Court
also held that the demand for tax can be
quantified and raised only in the manner
prescribed in Section 73 or Section 74 of the
Act, as the case may be.

12. In the light of what has been
decided by this Court in the case of M/s
Metenere Limited (Supra), it is clear that the
entire exercise resorted to under Section 130
of the GST Act for assessment/ determination
of the tax and the penalty is neither stipulated
under the Act, nor can be done in the manner
in which it has been done, more so, in view
of the fact that the department itself had
undertaken the exercise of quantifying the tax
due, by taking recourse under Section 74.

13. As the entire tax has been
determined and the penalty has been levied
only on the basis of a survey by taking
recourse under Section 130 of the GST Act
and not taking a recourse to Section 74, the
order impugned is clearly unsustainable.

14. Coming to the Issue no.2, Section
130 of the GST Act contemplates and
4 All. M/s Maa Mahamaya Alloys Pvt. Ltd. Vs. State of U.P. & Ors.
527
provides for levy of the penalty, in the
event, any of the conditions so mentioned
in Section 130(1) are made out. Section
130(1) reads as under:

"Section 130. Confiscation of goods
or conveyances and levy of penalty-

(1)
Notwithstanding
anything
contained in this Act, if any person -

(i) supplies or receives any goods in
contravention of any of the provisions of
this Act or the rules made thereunder with
intent to evade payment of tax; or

(ii) does not account for any goods on
which he is liable to pay tax under this Act;
or

(iii) supplies any goods liable to tax
under this Act without having applied for
registration; or

(iv) contravenes any of the provisions
of this Act or the rules made thereunder
with intent to evade payment of tax; or
(v) uses any conveyance as a means of
transport
for
carriage
of
goods
in
contravention of the provisions of this Act
or the rules made thereunder unless the
owner of the conveyance proves that it was
so
used
without
the
knowledge
or
connivance of the owner himself, his agent,
if any, and the person in charge of the
conveyance,
then, all such goods or conveyances shall
be liable to confiscation and the person
shall be liable to penalty under section
122."

15. On a plain reading of the
allegations levelled against the petitioner
with regard to the improper accounting of
goods, the only stipulation contained in
Clauses (ii) and (iv) of sub-section (1) of
Section 130 can at best be invoked by the
department, however, in the present case,
even assuming for the sake of argument,
that the goods were lying in excess of the
goods in record, the case against the
petitioner would not fall under Clause (ii)
of sub-section (1) of Section 130 for the
simple reason that the liability to pay the
tax arises at the time of point of supply, and
not at any point earlier than that. On a plain
reading, the scope of Clause (ii) of subsection (1) of Section 130 is that any
assessee who is liable to pay tax and does
not account for such goods, after the time
of supply is occasioned, would be liable to
penalty under Clause (ii). Analyzing Clause
(iv) of sub-section (1) of Section 130, the
contravention of any provision of the Act or
the Rules should be in conjunction with an
intent to evade payment tax and penalty can
be levied by invoking Clause (iv) only
when the department establishes that there
were a contravention of the Act and Rules
coupled with the ''intent to make payment
of tax'. There is no such allegation in the
show cause notice or any of the orders, I
have no hesitation in holding that even the
Clause (iv) of sub-section (1) of Section
130 would not be attracted in the present
case.

16. Coming to the Issue no.3 of
determination, Section 169 of the Act
provides for manner of service of notice in
certain circumstances. Section 169 is
quoted hereinbelow:

"Section 169. Service of notice in
certain circumstances.-

(1) Any decision, order, summons,
notice or other communication under this
Act or the rules made there under shall be
served by any one of the following methods,
namely:-

(a) by giving or tendering it directly or
by a messenger including a courier to the
addressee or the taxable person or to his
manager or authorised representative or an
advocate or a tax practitioner holding
528 INDIAN LAW REPORTS ALLAHABAD SERIES
authority to appear in the proceedings on
behalf of the taxable person or to a person
regularly employed by him in connection
with the business, or to any adult member
of family residing with the taxable person;
or

(b) by registered post or speed post or
courier with acknowledgment due, to the
person for whom it is intended or his
authorised representative, if any, at his last
known place of business or residence; or

(c) by sending a communication to his
e-mail address provided at the time of
registration or as amended from time to
time; or

(d) by making it available on the
common portal; or

(e) by publication in a newspaper
circulating in the locality in which the
taxable person or

 the person to whom it is issued is last
known to have resided, carried on business
or personally worked for gain; or

(f) if none of the modes aforesaid is
practicable,
by
affixing
it
in
some
conspicuous place at his last known place
of business or residence and if such mode is
not practicable for any reason, then by
affixing a copy thereof on the notice board
of the office of the concerned officer or
authority who or which passed such
decision or order or issued such summons
or notice.

(2) Every decision, order, summons,
notice or any communication shall be
deemed to have been served on the date on
which it is tendered or published or a copy
thereof is affixed in the manner provided in
sub-section (1).

(3)
When
such
decision,
order,
summons, notice or any communication is
sent by registered post or speed post, it
shall be deemed to have been received by
the addressee at the expiry of the period
normally taken by such post in transit
unless the contrary is proved."

17. In terms of Clause (a) of Section
169(1), a service would be completed only
when it is tendered to the taxable person or
on
his
Manager
or
authorized
representative.

18. Serving on the Accountant of the
firm is neither contemplated nor provided
for under Section 169(1)(a) and thus, the
service as claimed by the Counsel for the
respondent on the Accountant cannot be
held to be a valid service, thus, on that
count also, the entire proceedings are liable
to be quashed.

19. Coming to the Issue no.IV with
regard to the determination of value of the
goods. Section 15 of the GST Act provides
for valuation of the taxable supply. In
furtherance of the provisions contained in
the Act, Rules have been framed and Rule
27 of the said Rules provides for the
manner of valuation of supply of goods or
services, however, in the present case, the
valuation of the goods is required to be
done in terms of the mandate of Section
15(1) read with Section 15(2) and read with
Section 15(3). In the said Section 15 or the
Rules framed thereunder, there is no
prescriptions for valuation of the goods on
the basis of eye estimation as has been
done by the department and has been
repelled by the appellate authority. The
appellate authority has erred in repelling
the valuation done on the basis of eye
estimation, however, has proceeded to
value the goods (although differently) at the
appellate stage without resorting to the
mandate and manner prescribed in Section
15 read with the Rules, thus, on that count
also, the impugned order is not sustainable.
4 All. Kumari Deepti Vs. State of U.P. & Ors.
529

20. For all the reasons recorded
above, the writ petition deserves to be
allowed. Accordingly, the impugned order
dated 29.01.2019 is set aside and the writ
petition is allowed.

21. The amount deposited by the
petitioner shall be refunded subject to the
outcome of the demand quantified under
Section 74 of the Act in accordance with
law.
----------
(2023) 4 ILRA 529
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2023

BEFORE

THE HON'BLE MAHESH CHANDRA
TRIPATHI, J.
THE HON'BLE SAURABH SRIVASTAVA, J.

Special Appeal No. 109 of 2023

Kumari Deepti ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Sri Yogesh Kumar Saxena, Sri Ram Sajivan

Counsel for the Respondent:
C.S.C.

A. Service Law - Selection/Appointment -
Reservation - Format of Caste Certificate -
Public Service (Reservation for Scheduled
Castes,
Scheduled
Tribes
and
Other
Backward Classes) Act, 1994 - Certificate
produced by a candidate claiming the
benefit of reservation available to O.B.C.
category candidate should evidence and
facts (1) that the candidate who belongs
to a group identified, as such, by the
State Government and (2) that the
candidate is not excluded as per the
criteria for the Creamy layer prescribed
by
the
State
government
of
Uttar
Pradesh. (Para 22, 30)
Issue before this Court is as to whether by not
submitting the caste certificate in the format as
prescribed
in
the
advertisement
rather
submitting the same in the format which has
been prescribed by the State of U.P. itself for
the purposes of issuing the caste certificate for
claiming the benefit of reservation available to
O.B.C. category candidates for appointment to
the post under the GOI, the Appellant-Petitioner
dis-entitled herself for claiming such benefit.
(Para 15)

The certificate relied upon and submitted by the
Appellant-Petitioner
dated
06.03.2021
was
issued by the Tehsildar sufficiently certifies and
evidences that the Appellant-Petitioner belongs
to an O.B.C. group identified and recognised by
the State government of Uttar Pradesh and
further that she as per the criteria prescribed by
the State government of Uttar Pradesh for
exclusion under creamy layer does not fall in the
creamy layer and hence, she is eligible and
entitled to claim reservation available to O.B.C.
category candidate. (Para 31)

B. Benefit of the reservation in public
employment to different disadvantaged
section of the society is permissible under
the Constitution of India as an affirmative
action. It is not in dispute that the AppellantPetitioner was given appointment while she
claimed the benefit of reservation available to
O.B.C. candidates in her selection to the post of
Constable (Civil Police) Uttar Pradesh Police
Services, merely because the certificate
produced by her was not in (Praroop-1)
though the certificate produced by her,
clearly evidences that she belongs to an
O.B.C. category as identified by the State
Government of Uttar Pradesh and also
that she does not get excluded as a person
belonging to creamy layer in terms of the
criteria
laid
down
by
the
State
Government of Uttar Pradesh. For the said
purpose, it should not be taken aid of by the
State authorities for denying her otherwise
constitutionally guaranteed right of affirmative
action. (Para 32)

The order passed by the learned Single Judge
cannot be sustained neither on the ground that
the caste certificate as submitted by the
Appellant-Petitioner was not within the time as