joins (dissenting).
The opinion suggests that the only whiskey which may be exempt from the produc*604tion tax under subsection (1) of KRS 243.-680 must be produced and manufactured within the physical boundary and confines of a Class 6 U. S. Customs Bonded Manufacturing Warehouse. (I doubt very much if any distiller within this state has a still in a Class 6 Warehouse or a Bonded Warehouse of any nature; the still house is usually in a separate building.) The opinion, however, holds that if the whiskey is not produced under such unusual circumstances, it has not been committed with certainty to the stream of exportation. I cannot understand why the particular spot of production has such importance. Under subsection (2) of § 5002, Title 26 U.S.C. it is required that the entire premises be bonded, and the bonded premises are subjected to rigid federal control.
It appears that the most important thing should concern whether a distiller has committed with certainty 15 barrels of whiskey to specific export trade — otherwise we are concerned only with security measures. There is no more likelihood that goods will be diverted to domestic use from a bonded Class 6 Warehouse than from the bonded premises of the entire unit which is also highly policed. It will be remembered that as soon as whiskey is drawn off, it is placed in specially marked barrels and immediately taken to the Class 6 Warehouse. As soon as it comes into being as raw spirits, it is marked and on its way to a foreign land.
I believe that the covenant and promise of the distiller has greater significance than the physical property of the plant. It is plain from the letter of intent which is made a part of the complaint that appellee requested the issuance of a tax free permit from the state for the manufacture of’ fifteen barrels of whiskey. It follows that when that fifteen barrels of whiskey are produced and come into being they are immediately committed to specific export trade under the terms of the letter. If there is any diversion thereafter, there are sufficient sanctions, both state and federal,, which may be applied. It is a matter of' common knowledge — -at least in this state— that the manufacture and storage of distilled spirits are subject to strict control of" the federal government during the period" of its manufacture and transportation to the-warehouses and, for that matter, thereafter.. In addition, under 26 U.S.C. § 5521 et sequitur, the manufacturer must execute satisfactory bonds for the faithful observance-of all provisions of federal law and regulations promulgated thereunder.
It is apparent from the facts stated in-the majority opinion that the distiller has-covenanted to comply with all laws and regulations as to identification and storage.. The only flaw the majority opinion finds-with the proposed plan is that the entire-manufacturing process did not take place within a Class 6 Warehouse. Such a holding, I believe, is beyond the spirit and intent, of the constitution and federal statutes and regulations. I am convinced that under the facts the 15 barrels of whiskey which will be ultimately produced under a permit granted under subsection (1) of 243.680 (whether tax free or not) are definitely committed to exportation from the beginning of the distillation process.
We, therefore, respectfully dissent.