Concurring and Dissenting Opinion by
Judge Blatt:I concur with the majority’s determination that a contractor can claim the public utility exception. 1 must dissent, however, from the majority’s interpretation and application of the exception.
The public utility exception here involved provides that tangible personal property used or consumed in any of the operations of constructing facilities which are directly used to produce or deliver a public utility service (hereinafter “direct use facilities”) are not subject to tax.1 This provision is an exclusion from tax, not an exemption, and, as such, must be liberally construed in favor of the taxpayer. Commonwealth v. Erie Excavating & Grading Co., 432 Pa. 593, 248 A.2d 191 (1968); Equitable Gas Co. v. Commonwealth, 18 Pa. Commonwealth Ct. 418, 335 A.2d 892 (1975); Department of Revenue v. Air Products & Chemicals, Inc., 27 Pa. Commonwealth Ct. 136, A.2d (1976).
I believe that all of the materials and equipment here involved constitute tangible personal property and, because it appears that they were used or consumed in the construction of a direct use facility, they should be subject to the broad tax exception. Section 201 (o) (4) (B) of the Code excludes from tax the “use or consumption of tangible personal property, including but not limited to machinery and equipment and parts therefor and supplies,” directly in the construc*236tion of direct use facilities,2 and one of the limiting sections to be considered in relation to the exclusion provides that the ‘ ‘ exclusion . . . shall not apply to . . . tools and equipment used but not installed in the maintenance of [direct use facilities]”3 (emphasis added). I interpret these sections of the law as providing that tools and equipment are tangible personal property and excluded from tax, when used or consumed in the construction of direct use facilities. Moreover Paragraph 18 of the stipulation of facts entered into by the Commonwealth states that all of the property here involved would be excluded from tax if purchased by the utility itself, and the majority here has held that “we must reject the Commonwealth’s contention that only the utility itself may claim the [exception].”4
I believe that the Bureau’s Regulation 150 and Ruling 61, relied upon by the majority, do not fairly interpret the Code. They were clearly promulgated from the erroneous viewpoint, corrected here by the majority, that the exception was not applicable to anyone other than a public utility, and there is no requirement in the Code that tangible personal property be “installed,” only that it be “used or consumed.” The fact of use or consumption, and the extent thereof, of course, must be proved by the contractor.
Judge Mencer joins in this concurring and dissenting opinion.Section 201(o) (4) (B) (iii) of the Tax Reform Code of 1971 (Code), Act of March 4, 1971- P.L. 6, as amended, 72 P.S. §7201(o) (4) (B) (iii).
Section 201 (m) of the Code, 72 P.S. §7201 (m) defines tangible personal property as “[c]orporeal personal property.”
Section 201(o) (4) (B) of the Code, 72 P.S. §7201(o) (4) (B).
In Allison Engineering Co. v. Commonwealth, 20 Pa. Commonwealth Ct. 623, 342 A.2d 510 (1975), we considered the question of whether or not a helicopter was tangible personal property used directly in manufacturing operations by the appellant While we held there that the helicopter was not “directly used” in manufacturing, we apparently felt that it constituted tangible personal property under Section 201(o) (4) (B) of the Code.