*164OPINION OF THE COURT BY
OGATA, J.Otis Elevator Company, Inc., a New Jersey corporation doing business in Hawaii (hereinafter referred to as taxpayer), has appealed from the findings of fact and conclusions of law and the judgment of the Tax Appeal Court, which upheld the validity of an assessment of additional use tax on property which the taxpayer had imported into the state during 1966 through 1970. The decision was based upon stipulated facts. We affirm.
The taxpayer is a fully vertically integrated business. As such it manufactures elevator and escalator components and parts at various factories located out of the state. These components and parts are then imported into this state by the taxpayer where they are used by taxpayer in the performance of its business. There are no manufacturers located in this state who manufacture elevator and escalator components *165and parts. As explained in the taxpayer’s opening brief, “[t]here are no ‘middlemen’ between (the taxpayer) and the ultimate users of its products.”
In this state, the taxpayer is engaged in four aspects of this business. Two aspects of the taxpayer’s business consisted of (1) performing regular maintenance service and (2) performing occasional repair service, both of which included installation of replacement parts as necessary. These aspects of the taxpayer’s activities can be described as “service business.”1 Indeed, in this regard the taxpayer has paid an excise tax as a person engaged in a service business pursuant to HRS § 237-13(6) (Supp. 1975),2 on each of these business activities. The two other aspects of the taxpayer’s business consisted of (3) assembling and installing “knocked down” elevator and escalator units under construction subcontracts and (4) doing complete renovation work on existing elevator and escalator units under modernization contracts, which included assembly and installation of components and parts as necessary. These latter aspects of the taxpayer’s activities can be described as “contracting.” Indeed, the taxpayer has *166paid an excise tax as a “contractor”3 pursuant to HRS § 237-13(3) (A),4 on each of these business activities. It is significant, however, that the record does not show that the taxpayer has ever paid any excise tax as a retailer under HRS § 237-13(2) or HRS § 237-16 (Supp. 1975) for any portion of these four aspects of its business activities.
During the tax years in question, 1966 through 1970, the taxpayer had imported into the state, in connection with aspects (1) and (2) of its business activities, components and parts with a finished-product landed value5 of $477,740.76.6 Apparently, the taxpayer had paid a use tax upon only $2,041.76 worth of these components and parts.7 Also during the same tax years in question, the taxpayer had imported *167into the state, in connection with aspects (3) and (4) of its business activities, components and parts with a finished-product landed value of $6,366,179.15.8 Apparently, the taxpayer has not declared or paid any use tax upon the importation of these components and parts.9
At the end of 1971, the taxpayer was assessed additional use tax for the years 1966 through 1970. Shortly thereafter, the taxpayer paid the additional tax under protest and commenced an action in the tax appeal court to recover the amounts paid.10 During the course of the litigation, an amended notice of assessment was sent to the taxpayer. Pursuant to this notice, the taxpayer was assessed additional use tax at the rate of four percent11 on $162,828.0112 (the finished-product landed value) worth of the parts imported in connection with its service business, rather than $477,740.76, as stated originally.13 Also, according to the *168amended notice, the taxpayer was assessed additional use tax at the rate of one-half of one percent14 on $9,184,380.46,15 rather than $6,366,179.15, of the finished-product landed value of all the components and parts imported in connection with its contracting business.16
In the tax appeal court the taxpayer did not dispute that the use tax applies to the items of tangible personal property it had imported into the state in connection with its business. Rather, it objected to the rate that the tax director applied and to the measure of the tax base which the tax director applied in determining the amount of the tax. The taxpayer’s two basic contentions are: (1) That its use tax liability by reason of the importation of parts in connection with its service business should be determined according to HRS § 238-2(2) (A), which imposes a one-half of one percent rate, rather than HRS § 238-2(3), which imposes a four percent rate; and, (2) That a use tax against it, on all components and parts *169imported in connection with both the service and the contracting aspects of its business, measured by the landed value of the fully finished components and parts unduly discriminates against the taxpayer in violation of the commerce clause of the U.S. Constitution17 and HRS § 238-3(a) (Supp. 1975).18
Among its findings of fact and conclusions of law, the tax appeal court concluded that the parts imported in connection with its service business were imported for use and were consumed by the taxpayer in the performance of its service business rather than imported for resale to the taxpayer’s customers and that therefore the taxpayer is not entitled to treatment under HRS § 238-2(2) (A). The court also concluded that the use tax does not discriminate against the taxpayer since equal treatment is accorded to the in-state and out-of-state taxpayers similarly situated.
I.
We are fully aware that a taxpayer engaged in a “Service business or calling”,19 as defined in HRS ch. 237, may also be involved in the resale of an article to a consumer as well as in rendering of a nonprofessional service. In re Taxes, Alexander & Baldwin, Inc., 53 Haw. 450, 497 P.2d 37 (1972); see also HRS § 237-14. This was recognized by the legislature which enacted in 1970, subsequent to the taxable years in question, an amendment to HRS § 237-4, which added a new subsection (7) defining sales at wholesale:
(7) Sales of tangible personal property to a licensed person engaged in the service business, provided that (1) *170said property is not consumed or incidental to the performance of the services; (2) there is a resale of said article at the retail rate of 4 per cent; and (3) the resale of said article is separately charged or billed by the person rendering the services.
While we recognize that HRS § 237-4(7) (Supp. 1975) is inapplicable to the instant case, the basic question confronting us is whether the components and parts installed in the elevators as well as escalators during the taxpayer’s maintenance and repair work were sold by the taxpayer at retail. We agree with the taxpayer that this issue presents a question of fact. As the taxpayer admits in its reply brief, separate invoicing would supply some evidence to establish this fact. Of course, the mere installation of these components and parts to the equipment affixed to a building would be sufficient to pass title since they would become a part of realty. However, such an installation, without more, would not necessarily show an intent by the taxpayer to sell these articles to the consumers, and the actions undertaken by the taxpayer is, therefore, at least ambiguous. Duhame v. State Tax Commission, 65 Ariz. 268, 179 P.2d 252 (1947). On the record before us, we cannot hold that the tax appeal court erred in holding that the parts were imported by the taxpayer in connection with performing its service business and not for the purpose of resale.
In this respect HRS § 238-2(2) (A) states:
§238-2 Imposition of tax; exemptions. There is hereby levied an excise tax on the use in this State of tangible personal property which is imported, or purchased from an unlicensed seller, for use in this State. The tax imposed by this chapter shall accrue when the property is acquired by the importer or purchaser and becomes subject to the taxing jurisdiction of the State. The rates of the tax hereby imposed and the exemptions thereof are as follows:
(2) If the importer or purchaser is licensed under chapter 237 and is (A) a retailer or other person *171importing or purchasing for purposes of resale, not exempted by paragraph (1), . . . , the tax shall be one-half of one per cent of the purchase price of the property, if the purchase and sale are consummated in Hawaii; or if there is no purchase price applicable thereto, or if the purchase or sale is consummated outside of Hawaii, then one-half of one per cent of the value of such property. (Emphasis supplied.)
The taxpayer, relying upon the. Alexander & Baldwin case, argues that during the tax years in question it was “a person importing. . . for purposes of resale.” In that case we held that a taxpayer who was engaged in the business of selling appliance parts as well as in the business of providing the service of repairing appliances, had correctly characterized as imports for resale, within the meaning of HRS § 238-2(2) (A), the appliance parts which it imported to be sold to customers acquired in its capacity as repairman. In that case the facts establishing that the taxpayer was in the business of selling included the fact that it sold parts to independent repair businesses and the fact that in carrying on its business of repairing appliances, it “invoiced labor separately from materials and carried charges for parts and services separately on its books and records,” a practice customarily followed by those of the taxpayer’s customers who were also engaged in the repair business. We were persuaded to find that the taxpayer and its customers, who also were engaged in the repair business, were engaged in the retail sales of parts by the satisfaction of three criteria: 1) the appliance repairmen were subject to excise tax liability upon gross income derived from the transfer of appliance parts to their customers; 2) the repairmen manifested an intent to sell the parts at retad through separate invoicing; and, 3) the parts passed to the customer in substantially the same form as when the repairmen received them from the taxpayer. Id. 53 Haw. at 454, 497 P.2d at 40. On the other hand, we held that the same taxpayer was not engaged in the sale of paint to licensed taxpayers in the automobde painting business, because the “automobile painters manifested no intent to sell the paint to their customers at retail; there was no separate *172invoicing.” Id. 53 Haw. at 455, 497 P.2d at 40.
The Alexander & Baldwin case stands for the proposition that a “person importing . . . for purposes of resale” means a person engaged in the business of selling tangible personal property. Since the taxpayer is claiming to be entitled to a rate lower than the common four percent rate, the taxpayer has the burden of proving that it comes under the provision giving a lower rate and any doubts should be resolved against the taxpayer. In re Pacific Marine & Supply Co., 55 Haw. 572, 524 P.2d 890 (1974); Honolulu Star Bulletin v. Burns, 50 Haw. 603, 446 P.2d 171 (1968).
The taxpayer contends that the essential facts of the Alexander & Baldwin case are practically identical to the facts of this case. However, in urging that it is a “person importing for purposes of resale” within the meaning of HRS § 238-2(2) (A), the taxpayer relies upon only two factors stipulated to in the tax appeal court, and articulated in Alexander & Baldwin: That it paid a general excise tax based on the gross receipts of its service business, which receipts included amounts which it attributes to components and parts; and, that in connection with the services performed by the taxpayer, the components and parts remained in substantially the same form after they were installed.20 *173Absent from the record is any fact by which the taxpayer manifested an intent to engage in the business of selling the parts at retail. Here it does not appear from the record that the taxpayer sells parts independently from its service business; nor does it appear from the record that the taxpayer carried charges for parts and services separately on its books and records. Indeed the taxpayer stipulated and the tax appeal court found that in billing the customers after performing repairs and maintenance, the taxpayer does not separately invoice labor costs from charges for the parts used. Consequently, we believe that a conclusion that the taxpayer is engaged in the business of selling is not warranted from the record. Therefore, the. Alexander & Baldwin case is distinguishable from the case at hand.
*172Both parties here are agreed that decisions from other states are not too helpful and, in fact, are sometimes misleading by reason of the difference in Excise Acts. Nevertheless, the one basic principle that may be gleaned safely from the reported cases is that when a completed structure is erected on the owner’s land, it is as much real property as the land itself. By no definition or reasoning is it tangible personal property. The constituent elements of personalty have been destroyed by a metamorphosis, i.e. by their incorporation into the completed structure. Through the contractor’s application of skill and labor to the materials, something different has been wrought from their use and union, and the materials purchased are no longer to be distinguished as personalty. Therefore, we hold that when the contractor buys materials and supplies for use in fulfilling his contract, he does not purchase them for resale as tangible personal property, but for use in producing the completed job. He is not a trader or dealer. (Emphasis supplied.)
*173II.
The taxpayer’s second contention is that applying the use tax rates21 against the finished-product landed value of the components and parts would unduly discriminate against it and in favor of similarly situated in-state vertically integrated businesses in violation of the commerce clause of the U.S. Constitution and HRS § 238-3(a) (Supp. 1975). The taxpayer relies upon Halliburton Oil Well Co. v. Reily, 373 U.S. 64 (1963), for the proposition that equal treatment for in-state and out-of-state taxpayers similarly situated is the condition precedent for a valid use tax on goods imported from out-of-state. We have recently recognized this principle in In re Taxes, Puna Sugar Company, Ltd., 56 Haw. 621, 547 P.2d 2 (1976), where we held that including transportation charges in the use tax base equalized the burden of the tax on property sold locally and property purchased from out of state and did not impose an undue burden on interstate commerce. Halliburton Oil Well Co.v. Reily, supra, requires that taking *174“the whole scheme of taxation into account”, 373 U.S. at 69, the taxpayer is compared “to the in-state taxpayer who is most similarly situated”, 373 U.S. at 71, and if “this comparison discloses discriminatory effects, it could be ignored only after a showing of adequate justification,” 373 U.S. at 71.
The taxpayer asserts that it should be compared to an in-state manufacturer-retailer. We disagree. We deem that its business activities would properly require a comparison with an in-state manufacturer-contractor as to aspects (3) and (4), both of which relate to contracting, and a manufacturerservicer as to aspects (1) and (2), both of which relate to a servicing business. Since the taxpayer was engaged in these two classifications of business, and has paid all gross excise taxes under these categories, we have separately analyzed each of these classifications.
While the record before us is claimed by the director of taxation to be insufficient to make an accurate comparison,22 we have, nevertheless, attempted such a comparison by using the assumptions made by the taxpayer in the stipulation of facts with respect to the allocations of costs attributable to raw material, conversion, administrative, and shipping and related handling costs, as being true and correct.23
*175Our comparative analysis of the figures in regard to an out-of-state manufacturer-contractor and an in-state manufacturer-contractor based on the percentage allocations made by the taxpayer shows that the out-of-state manufacturer-contractor would definitely have an overwhelming tax advantage over the in-state manufacturer-contractor.24 Under these circumstances any claim made by taxpayer that HRS ch. 238 exacts a use tax which discriminates against interstate commerce is without factual foundation. A comparison between the taxpayer and a similarly situated wholly in-state taxpayer based on the information available in the stipulation of facts shows that there is a limited discrimination against the out-of-state manufacturer-servicer.25 We do not find, however, that this apparent discrimination helps the taxpayer in this case for the reasons which follow.
As Halliburton Oil Well Co. v. Reily, supra, has admonished us to do, we have compared the taxpayer to “the in-state taxpayer who is most similarly situated.” 373 U.S. at 71. In this case we do not separately compare the taxpayer to a manufacturer-contractor and a manufacturer-servicer. Rather, our comparison must be between an in-state and an out-of-state vertically integrated manufacturer-contractorservicer. Considering together the analysis given above, we find That we are able to determine conclusively from the record that the taxpayer in this case paid considerably less *176total excise and use taxes during the years in question than its in-state counterpart would have paid.
Ronald W. K. Yee {Julian H. Clark with him on the brief, Case, Stack, Kay, Clause & Lynch of counsel) for plaintiff-appellant. T. Bruce Honda, Deputy Attorney General, for Director of Taxation, defendant-appellee.We are constrained to hold that we do not perceive in the taxpayer’s last contention that a use tax computed against it by applying the finished product landed value of the components and parts would be unduly discriminatory against it. As we have quoted in the past, “ ‘[prohibited discriminatory burdens on interstate commerce are not to be determined by abstractions. Particular facts of specific cases determine whether a given tax prohibitively discriminates against interstate commerce.’ (Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 366.)”Stewarts’ Pharmacies v. Tax Com’r Fase, 43 Haw. 131, 144 (1959). In this case the taxpayer has not shown any particular facts on which to make a determination that the finished product landed value of the components and parts prohibitively discriminates against interstate commerce. Complete Auto Transit, Inc. v. Brady, 97 S. Ct. 1076 (1977). We, therefore, reject the taxpayer’s argument concerning the. constitutional point made with reference to the commerce clause as well as HRS § 238-3(a) (Supp. 1975). It is to be noted by the director of taxation that this part of the opinion is limited to a taxpayer who operates as a vertically integrated enterprise.
Accordingly, judgment is affirmed.
HRS § 237-7 defines “service business or calling” as follows:
§ 237-7 “Service business or calling”, defined. “Service business or calling” includes all non-professional activities engaged in for other persons for a consideration which involve the rendering of a service as distinguished from the sale of tangible property or the production and sale of tangible property. “Service business or calling” does not include the services rendered by an employee to his employer.
HRS § 237-13(6) (Supp. 1975) states:
§237-13 Imposition of tax. There is hereby levied and shall be assessed and collected annually privilege taxes against persons on account of their business and other activities in the State measured by the application of rates against values of products, gross of sales, or gross income, whichever is specified, as follows:
*****
(6) Tax on service business. Upon every person engaging or continuing within the State in any service business or calling not otherwise specifically taxed under this chapter, there is likewise hereby levied and shall be assessed and collected a tax equal to four per cent of the gross income of any such business; ....
HRS § 237-6 (Supp. 1975) defines “contractor” as follows:
§237-6 “Contractor”, “federal cost-plus contractor”, defined. “Contractor” includes, for purposes of this chapter:
(1) Every person engaging in the business of contracting to erect, construct, repair, or improve buildings or structures, of any kind or description, including any portion thereof, or to make any installation therein, or to make, construct, repair, or improve any highway, road, street, sidewalk, ditch, excavation, fill, bridge, shaft, well, culvert, sewer, water system, drainage system, dredging or harbor improvement project, electric or steam rail, lighting or power system, transmission line, tower, dock, wharf, or other improvements; and
HRS § 237-13(3) (A) states:
§237-13 Imposition of tax. There is hereby levied and shall be assessed and collected annually privilege taxes against persons on account of their business and other activities in the State measured by the application of rates against values of products, gross proceeds of sales, or gross income, whichever is specified, as follows:
(3) Tax upon contractors.
(A) Upon every person engaging or continuing within the State in the business of contracting, the tax shall be equal to four per cent of the gross income of the business; provided, that insofar as the business of contracting is taxed by section 237-16, which relates to certain retailing, the tax shall be that levied by section 237-16.
The term “finished-product landed value” as used in this opinion includes the value of raw materials, shop overhead, transportation and administration expenses.
Per notice of assessment dated October 9, 1971.
Per notice of assessment dated October 9, 1971.
Per notice of assessment dated October 9,1971; see also stipulated facts ¶ 6 and ¶ 7.
No figures are shown under the column “as returned” in the notices of assessment dated October 9, 1971.
HRS § 40-35; HRS § 238-8; HRS § 235-114 (Supp. 1975).
HRS § 238-2(3) states:
§238-2 Imposition of tax; exemptions. There is hereby levied an excise tax on the use in this State of tangible personal property which is imported, or purchased from an unlicensed seller, for use in this State. The tax imposed by this chapter shall accrue when the property is acquired by the importer or purchaser and becomes subject to the taxing jurisdiction of the State. The rates of the tax hereby imposed and the exemptions thereof are as follows:
sf: sje s£ jfs
(3) In all other cases, four per cent of the value of the property.
See notice of assessment dated January 9, 1974, under additional amount taxable; see also stipulated facts ¶ 14.
Stipulated facts ¶ 14, and notice of assessment dated October 9, 1971.
HRS § 238-2(2) (C) states:
§238-2 Imposition of tax; exemptions. There is hereby levied an excise tax on the use in this State of tangible personal property which is imported, or purchased from an unlicensed seller, for use in this State. The tax imposed by this chapter shall accrue when the property is acquired by the importer or purchaser and becomes subject to the taxing jurisdiction of the State. The rates of the tax hereby imposed and the exemptions thereof are as follows:
* * # sH *
(2) If the importer or purchaser is licensed under chapter 237 and is . . . (C) a contractor importing or purchasing material or commodities which are to be incorporated by the contractor into the finished work or project required by the contract and which will remain in such finished work or project in such form as to be perceptible to the senses, the tax shall be one-half of one per cent of the purchase price of the property, if the purchase and sale are consummated in Hawaii; or, if there is no purchase price applicable thereto, or if the purchase or sale is consummated outside of Hawaii, then one-half of one per cent of the value of such property.
Stipulated facts ¶ 7; but on the notice of assessment dated January 9,1974, the figure shown is $10,619,851.78.
Judgment for $9,167.34 was entered in addition to a judgment for $55,115.35; the taxpayer asserts that the additional amount has been also paid.
Art. I, Sec. 8, U.S. Constitution.
HRS § 238-3(a) (Supp. 1975) states:
§238-3 Application of tax, etc. (a) The tax imposed by this chapter shall not apply to any property, or to any use of the property, which cannot legally be so taxed under the Constitution or laws of the United States, but only so long as, and only to the extent to which, the State is without power to impose the tax.
See footnote 1.
That the components and parts remained in substantially the same form is part of the stipulated facts. This stipulation governs the course of the litigation unless modified by the court to prevent manifest injustice. In re Taxes, 711 Motors, Inc., 56 Haw. 644, 547 P.2d 1343 (1976). Other courts have found that the components and parts do not keep the same character. See, Duhame v. State Tax Commission, 65 Ariz. at 280, 179 P.2d at 260 (1947):
Use tax rate of four percent was applied by the director of taxation to components and parts imported by the taxpayer for maintenance and repair work, and a use tax rate of one-half of one percent was applied to components and parts for new construction and modernization work.
The stipulation of facts divide the finished-product landed value of the components and parts imported in connection with the taxpayer’s business into four parts, consisting of raw materials, conversion, administrative and shipping costs. For example, in 1966 the taxpayer imported components and parts with a finished-product landed value of $2,427,761.83. The breakdown of this figure was clarified by the taxpayer to be 33% raw material, 45% conversion, 15% administrative and 7% shipping. This data is insufficient to make an accurate comparison because these percentages may not be the same for a Hawaii manufacturer-contractor-servicer. For example, the cost of shipping of raw materials would likely be higher than the cost of shipping finished products since some raw materials could be expected to result in scrap in the process of manufacturing.
The director states that he has refrained from discussing questions involving the allocations of material costs, conversion costs, administrative costs and transportation charges inasmuch as the taxpayer has not furnished necessary records from which these allocations may be verified. In this adversary proceeding the taxpayer has the burden to prove these items; however, where the taxpayer asserts that certain facts are true, we may accept those facts and proceed on that assumption for purposes of argument.
An example will suffice to show the difference. Assuming that the cost breakdown for an in-state manufacturer-contractor would be the same as that claimed by the taxpayer’s breakdown for 1966, we find that the value of the raw materials imported by the in-state manufacturer-contractor would have been 40% (33% Raw Material + 7% Shipping) of the finished-product landed value ($2,427,761.83) or $971,104.73. The use tax liability at the four percent rate would have been $38,844.19. The use tax liability of the taxpayer in this case was $12,138.81 for 1966.
For example, the out-of-state taxpayer (manufacturer-servicer) has incurred a use tax of $861.77 for the year 1966, while the in-state taxpayer (manufacturerservicer) would incur a use tax of $310.24. The total amount of use tax payable by the out-of-state taxpayer during 1966 through 1970 will be $4,007.14 more than that paid by the in-state taxpayer.