(dissenting). In selecting the alternative business allocation tax formula based on the “ cost of manufacturing and selling” goods, it is my view that petitioner was justified in excluding from such cost item the Federal excise tax (Internal Revenue Code [U. S. Code, tit. 26], § 5051) which it incurred in the production and sale of its beer. In my opinion, the excise tax is a cost of doing business and not ‘‘cost of manufacturing and selling”. While “advertising expense” and “factory overhead ’ ’ are explicitly included within the Comptroller’s definition of “costs of manufacturing and selling ”, there is no mention therein of any excise taxes; accordingly, the Comptroller was without power to include the Federal excise taxes in *32computing the cost of manufacturing and selling petitioner’s product.
Under the circumstances, the Comptroller should have remitted the penalty imposed upon petitioner for its delay in paying the tax assessed against it. The order appealed from should be modified accordingly.
Chief Judge Desmond and Judges Dye, Van Voobhis, Btjbke and Beegan concur with Judge Fuld; Judge Scileppi dissents in a memorandum.
Order affirmed.