Appeal from the Order of the Board of Finance and Revenue, in case of In Re: Faylor-Middlecreek, Inc., Docket No. RST-67.
Nevin Stetler, with him Stetler & Gribbin, for appellant.
Paul S. Roeder, Deputy Attorney General, for appellee.
Judges Wilkinson, Jr., Mencer and Blatt, sitting as a panel of three. Opinion by Judge Wilkinson, Jr.
[ 29 Pa. Commw. Page 558]
The facts in the instant case are not in dispute and are established in the stipulations of facts filed. These stipulations are adopted as our findings of fact and are hereinafter related in narrative form.
Appellant is in the business of manufacturing bituminous concrete used in highway construction. Prior to January 23, 1974 appellant maintained two bituminous concrete manufacturing plants at its Winfield, Pennsylvania, location together being capable of manufacturing 600 tons per day. On that date appellant purchased what the invoice identified as two hot-mix storage systems. The stipulations of facts filed state that:
10. Immediately upon purchase of the 'hot silos' Appellant affixed the same to the real estate immediately adjacent to its bituminous concrete manufacturing plant in Winfield, Pennsylvania, to which it was attached by conveyor belt.
Prior to the installation of the hot-mix storage systems the bituminous concrete manufactured by appellant at this site was required to be immediately placed in trucks and delivered to its customers. By the installation
[ 29 Pa. Commw. Page 559]
of these hot-mix storage systems appellant is permitted to place the bituminous concrete in its then acceptable finished condition in storage for up to 24 hours. In practice it remains only one to two hours before it is picked up by trucks and delivered to construction projects. By a system of hot oil which completely encases the storage facility known as hot silos, the bituminous concrete is maintained at 290 degrees Fahrenheit, its temperature when it leaves the manufacturing plant and is placed on the conveyor belt to the storage facilities. The hot silos are sealed and maintain an oxygen free atmosphere to keep the bituminous concrete from oxydizing and becoming hard.
As a result of the flexibility provided by these storage facilities, appellant was enabled to dismantle one of the two manufacturing plants and with the remaining one continued to produce 600 tons a day.
At issue in this case is whether the $9,192.00 Sales and Use Tax is due on the purchase of the hot silos. Tax Reform Code of 1971, Act of March 4, 1971, P.L. 6, as amended, 72 P.S. § 7101, et seq. The ...