Pre-deposit waiver must be decided first before dismissing an appeal for non-compliance with the deposit requirement.

An appeal should not be dismissed for non-compliance with the pre-deposit requirement while a pending prayer for waiver or dispensation remains undecided. The appellate authority was required to dispose of the stay petition first, even if the appellant was absent on the hearing date, because the matter had already been posted for that purpose. Straight dismissal for alleged non-deposit was therefore unwarranted, and the dismissal was set aside with a remand for fresh consideration of the dispensation request after hearing the appellant.

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Issues: Whether the appellate authority was justified in dismissing the appeal for non-compliance with the pre-deposit requirement without first deciding the stay petition seeking dispensation of pre-deposit.

Analysis: The appellant had filed a prayer for dispensation of the pre-deposit condition. Even if there was absence on the date fixed for hearing, the appellate authority was bound to decide the stay petition before taking up dismissal for non-deposit. Since the matter stood posted for disposal of the stay petition, straightway dismissal of the appeal for alleged non-compliance with Section 35F was not warranted.

Conclusion: The dismissal order was set aside and the matter was remanded to the Commissioner (Appeals) for first deciding the request for dispensation of pre-deposit, after granting an opportunity of hearing to the appellant.

Ratio Decidendi: An appeal cannot be dismissed for non-deposit under the pre-deposit provision unless the pending prayer for waiver or dispensation of pre-deposit is first decided.

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