I concur in the majority statement, except as to what is designated as Item No. 1 of petitioner’s claimed refund.
A reading of the statute does not require, as a matter of law, a finding that dynamite and blasting caps constitute “fuel”. In fact, in my opinion, it constitutes a strained interpretation. A statute or regulation authorizing an exemption from taxation “will be construed against a taxpayer unless it would defeat the settled purpose of the statute”. (Matter of G & B Pub. Co. v Department of Taxation & Fin., Sales Tax Bur., 57 AD2d 18, 21.)
The determination as to this item has a rational and reasonable basis and should be confirmed.
Sweeney, Kane and Weiss, JJ., concur with Mahoney, P. J.; Herlihy, J., concurs in part and dissents in part in an opinion.
*347Determination modified by annulling so much thereof as imposed sales taxes on (1) the purchase of a blasting agent and explosive devices, and (2) the purchase price of a tractor, front-end loader and salt conveyor; matter remitted for further consideration of the sale of services to petitioner and possible exemptions which may be applicable, and, as so modified, confirmed, without costs.