(dissenting). The proof does not show that the larger containers taxed by respondent were purchased by petitioner for resale as tangible personal property. The receptacles were bought by petitioner for its own use as a means of conveying its products to its customers. After the product has reached the customers of the American Molasses Company, the containers have already been used and are no longer new. Any further use by petitioner’s customers is a second-hand and secondary use.
*657Petitioner is not in the business of selling containers. That its customers do not know what charge is being made for the containers and that they are indifferent to specifications thereof, show that they are not interested in purchasing containers from petitioner. They purchase the molasses which petitioner sells and the container is merely an incident to the sale of the commodity.
In principle there is no distinction between the containers used by petitioner and wrapping paper used by another as a medium of conveying his products to his customers. Both are used for the same purpose and are consumed by those who engage their use as an incident to their business, and the cost is figured as a part of the overhead expense of the business. (City Paper Co. v. Long, 235 Ala. 652; 180 So. 324.) Merely because the container is more likely to be put to some further use than is the wrapping paper, furnishes no ground for holding that a sale has been made in the one instance and not in the other.
For the foregoing reasons, I dissent and vote to confirm the determination of the comptroller with respect to the imposition of the tax on the purchase of containers other than those which were involved in transactions in interstate commerce.
The determination of the respondent should be modified by eliminating the tax imposed on pails and drums purchased by petitioner from the Wheeling Corrugating Company, Pittsburg Steel Drum Company and National Steel Drum Company, and by eliminating the tax on the vegetable carbon known as “ Darco ” and the coal purchased from the Logan Supply Company, and as so modified confirmed.
Determination modified by eliminating the tax with respect to all matters other than that imposed on the labels and on the machine known as “ Darco Unit No. 2,” and as so modified confirmed. Settle order on notice.