Shri Ojha, ld. Consultant says that appeal may be disposed waiving requirement of pre-deposit, since penalty of Rs. 1,23,923/- is under contest. He says that had the appellant utilised the credit taken wrongly penalty would have been imposed. According to him following the Apex Court judgment in the case of Commissioner of Central Excise, Mumbai-I v. Bombay Dyeing & Mfg. Co. Ltd. reported in 2007 (215) E.L.T. 3 (S.C.) if credit was all along existing in statutory record but not utilized, Revenue was not affected. Therefore, appeal may be allowed waiving penalty imposed.

2. Ld. DR on the other hand says that once credit is taken, appellant has caused prejudice to Revenue. He relies on the decision of the Apex Court in the case of Union of India v. Ind-Swift Laboratories Ltd. reported in 2011 (265) E.L.T. 3 (S.C.) = 2012 (25) S.T.R. 184 (S.C.).

3. Heard both sides and perused record.

4. Since the dispute is only on the point of levy of penalty, appeal itself is disposed as consented by Revenue and the appellant, waiving requirement of pre-deposit. It is an established fact from the compilation filed by Shri Ojha that credit although was taken to statutory record, at no point of