*177DISSENTING OPINION OF
KIDWELL, J. WITH WHOM MENOR, J., JOINSI am unable to agree with the opinion by which the judgment of the tax appeal court is affirmed in this case. Although lengthy dissents are to be avoided, I feel that there is a need to express the minority viewpoint in this case at greater length than would ordinarily be appropriate.
The issue dealt with in part I of the plurality opinion relates to the use tax rate applicable to parts imported by the taxpayer (Otis) for use in the course of maintenance and repair work. The tax appeal court concluded that these parts were not sold at retail but were consumed in use by Otis, because Otis had not separately invoiced its charges for parts and for labor, citing In re Taxes, Alexander & Baldwin, 53 Haw. 450, 497 P.2d 37 (1972). The plurality opinion correctly concludes that separate invoicing, for tax years preceding January 1, 1971 (the effective date of the amendment of HRS § 237-4(7) ), was not the only permissible way of evidencing the fact of sale, but incorrectly, I believe, concludes that Otis did not carry its burden of establishing that a sale took place in the absence of separate invoicing.
Separate invoicing was referred to in Alexander & Baldwin as a convenient fact which was not necessary to the result. I would regard separate invoicing by Otis as similarly unnecessary and as serving no useful purpose. It is not disputed that Otis transferred ownership of the parts to its customers and that the parts passed to the customers without substantial alteration. The findings of fact of the tax appeal court include a finding that Otis was engaged in the sale, as well as the manufacture, installation, repáir and maintenance, of elevators and escalators. Since Otis was taxed as a contractor with respect to the parts imported for use in the installation of new elevators and escalators and the modernization of existing elevators and escalators, this finding seems clearly to imply that sales took place of the parts used in the repair and maintenance business. The stipulated facts, in my opinion, permit no other conclusion. Accordingly, I would reverse the tax appeal court’s *178application of a 4% use tax rate to the importation of the parts used in Otis’ maintenance and repair business and, upon remand, would direct that a use tax rate of ¥2% be applied to all importations of parts by Otis during the tax years in question.
The major issue in this case is that dealt with in the shorter part II of the plurality opinion and concerns the valuation for use tax purposes of parts manufactured by Otis in its mainland factories and imported into Hawaii by Otis. The parts were used in the assembly and installation of new elevators and escalators; in modernization of existing elevators and escalators; and in maintenance and repair services. Otis was assessed a use tax on the value of the parts in their finished condition as they arrived in Hawaii.
The use tax imposed by HRS Chapter 238 accrues when the property becomes subject to the taxing jurisdiction of the state. In Tax Appeal of Puna Sugar Co., 56 Haw. 621, 547 P.2d 2 (1976), we approved the use of the taxpayer’s cost, including freight, (the “landed value”), as evidencing the value for use tax purposes of imported property upon its arrival in the state, subject to rebuttal by a showing that the market value was actually less. Otis contends that there are circumstances present here which were not present in Puna Sugar, and that the costs incurred by Otis in manufacturing the parts on the mainland, from materials purchased by Otis, should be excluded in computing the value upon which the use tax is levied. The result would be that the use tax value of the finished parts would consist of the cost to Otis of the materials from which they were manufactured, plus shipping costs, to the exclusion of conversion and administrative costs.1 Otis contends that this result is mandated by Halliburton Oil Well Cementing Co. v. Reily, 373 U.S. 64 (1963).
*179Halliburton involved specialized oil well equipment manufactured by the taxpayer in Oklahoma and shipped into Louisiana for use there by the taxpayer. The Louisiana use tax applied at the rate of 2% on the “cost price” of any property not sold but used in the state, and was assessed on the entire cost of the equipment. The comparable sales tax was at 2% on the sale price of all property sold in the state. The question was whether the base for the use tax on the specialized equipment was limited to the value of the “raw materials and semifinished and finished articles” used in manufacturing the units, or could constitutionally include all costs of their manufacture. It was admitted that if the units had been manufactured in Louisiana either a sales tax or a use tax would have been paid on the cost of materials but no tax would have been paid on the labor or shop overhead costs incurred. Such labor and shop overhead costs were included in computing the cost of the units imported by the taxpayer, upon which the use tax was assessed. There is no indication in the opinion whether there were any manufacturers of such equipment operating in Louisiana.
It was held that the Louisiana use tax, as levied on the taxpayer’s equipment, discriminated against interstate commerce because a local manufacturer-user would not pay a tax on the portion of its cost attributable to labor and shop overhead. The Court stressed that there was a substantial dollar-and-cents inequality in the tax burden between in-state and out-of-state manufacturer-users, but nowhere suggested that there had to be an existing in-state manufacturer-user to create an invalid discrimination. Instead, the Court emphasized the incentive for a manufacturer-user to locate in Louisiana to avoid the extra tax, and pointed out that if other states had similar taxes they could destroy the economic advantages of manufacturing in a single state for multi-state use. This would be “destructive of the very purpose of the Commerce Clause.”2 373 U.S. at 72.
*180The tax appeal court held, in the present case, that the use tax levied on Otis was not discriminatory, for two reasons. First, it said that Otis had paid no more tax than it would have paid if it had purchased the parts in Hawaii. Second, it said that, since there are no manufacturers of such parts in Hawaii, every taxpayer engaged in the same business as Otis in Hawaii must import its parts and pay the same taxes as Otis. The tax appeal court may be correct in both assertions, but neither furnishes a ground for distinguishing Halliburton. The first ground was expressly dealt with in Halliburton. The court said:
. . . the Louisiana Supreme Court concluded that the comparison between in-state and out-of-state manufacturer-users is not the proper way to frame the issue of equality. It stated: “The proper comparison would be between the use tax on the assembled equipment and a sales tax on the same equipment if it were sold. ” On the basis of such a comparison, the out-of-state manufacturer-user is on the same tax footing with respect to the item used as the retailer of a similar item, or the competitor who buys from the retailer rather than manufacture his own. However, such a comparison excludes from consideration, without any explanation, the very in-state taxpayer who is most similarly situated to the appellant, the local manufacture-user. If the Louisiana Legislature were in fact concerned over any tax break the manufacturer-user obtains, it would surely have made special arrangements to take care of the *181in-state as well as out-of-state loophole — unless, of course, it intended to discriminate. We can only conclude, therefore, that the proper comparison on the basis of this record is between in-state and out-of-state manufacturer-users. 373 U.S. at 71.
The second ground on which the tax appeal court attempted to distinguish Halliburton requires acceptance of the exact discrimination which Halliburton struck down. The Court gave no attention in Halliburton to whether any local manufacturer-user was actually operating and enjoying the benefit of the discrimination. What concerned the Court was the incentive offered to the Halliburton Co. to move a part of its manufacturing operations from Oklahoma to Louisiana. The tax appeal court says, in effect, that everyone will pay the same tax only as long as no one in the elevator business starts to manufacture parts in Hawaii. This is exactly the tax situation which Halliburton dealt with and condemned.
The plurality opinion purports to accept Halliburton as controlling authority, but concludes that a comparison of Otis with its in-state counterpart does not show that such a taxpayer would have received more favorable tax treatment than Otis. The plurality bases this conclusion upon the assumptions that the in-state counterpart would have imported the materials to be manufactured into the parts, and that the use tax upon the value of all such imported materials would have been levied at the rate of 4%. Since Otis was taxed only at the rate of Vfflo on the landed value of parts used in the assembly of new elevators and escalators and in the modernization of existing elevators and escalators, although at the rate of 4% on the landed value of parts used in maintenance and repair services, the plurality expresses confidence that tke aggregate tax paid by Otis was less than a tax at the uniform rate of 4% on the value of all of the materials which would have been imported by its in-state counterpart.
The plurality is content to support this conclusion only by footnote examples of the relevant computations (footnotes 24 and 25). We are not informed how the computations are *182reconciled with HRS § 238-2,3 which prescribes the rates of the use tax. This statute creates three classes of importers for the purpose of the use tax, being those upon whom no tax is levied, those upon whom the tax is levied at the rate of Vfflo and those (all others) upon whom the tax is levied at the rate of 4%. The second class of importer, upon whom the tax is levied at the rate of Vz%, is described in clause (2) of the statute, and consists (for present purposes) of (a) retailers *183importing for purposes of resale, (b) manufacturers importing material to be incorporated, in such form as to be perceptible to the senses, into a finished product to be sold at retail, and (c) contractors importing material to be incorporated by such contractors into the finished work or project required by the contract, in such form as to be perceptible to the senses. The tax levied upon Otis with respect to the parts imported for use in the assembly of new elevators and escalators and in the modernization of existing elevators and escalators was assessed under clause (2) (C). The characterization of Otis, for this purpose, as a contractor importing material to be incorporated by the contractor into the finished work or project required by the contract in such form as to be perceptible to the senses, was not disputed in the tax appeal court and was incorporated by the tax appeal court into its findings and conclusions of law. No question with respect to this characterization of Otis was raised in this appeal and the rate of the tax upon Otis with respect to these parts is not an issue.
Following oral argument in this case, additional briefs were requested with respect to the questions set forth in the margin.4 Supplemental briefs were filed by Otis and the tax director, both taking the position that the rate of tax upon a taxpayer described in clauses (1) and (2) of question #1 would *184be V2%, under either § 238-2(2) (B) or § 238-2(2) (C), the distinction between the classifications of manufacturer and contractor being not material. The position taken by the plurality implies that the plurality has concluded that the in-state taxpayer described in clauses (1) and (2) of question #1 should be classified, as suggested in question #2, as a manufacturer who does not sell the product and is therefore subject to tax under § 238-2(3) at the 4% rate there prescribed. For this result to be reached, Otis must fall without the scope of § 238-2(2) (B) and (C).
The plurality opinion leaves us groping for an interpretation of § 238-2 which will sustain its application of the higher tax rate. By hypothesis, Otis’ in-state counterpart must be licensed under Chapter 237 as engaged in contracting and servicing, not as a manufacturer. In its business, it imports material to be incorporated into the work required by contracts for the installation or modernization of elevators and escalators, in such form as to be perceptible to the senses. Between importation and installation, the materials are altered in form to meet the requirements of the contracts. Had such alteration in form been accomplished on the site of the work, by sawing, shaping, drilling, mixing or the like, I cannot imagine how the case could be distinguished from § 238-2(2) (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.” Under the hypothesis, however, the materials will have been altered in form at premises removed from the site of the work and possibly before entry into the contract. Presumably, this is seen by the plurality as removing the case from § 238-2(2) (C). But before a 4% rate may be applied, the case must also be removed from § 238-2(2) (B).
The last-mentioned section applies to “a manufacturer importing or purchasing material or commodities which are to be incorporated by the manufacturer into a finished or saleable product. . . wherein it will remain in such form as to be perceptible to the senses, and which finished or saleable *185product is to be sold at retail in this State, in such manner as to result in a further tax on the activity of the manufacturer in selling such products at retail. ” If a sale of the parts at retail takes place, Otis’ hypothetical in-state counterpart, as a manufacturer, clearly meets all of the stated requirements of § 238-2(2) (B). The sale at retail requirement becomes a problem only because installation of and payment for the part is covered by a construction subcontract or a modernization contract. But we found no difficulty in concluding, in In re Taxes, Alexander & Baldwin, Inc., supra, that an automobile repair shop is engaged in the retail sale of parts when engaged in performing automobile repair and service contracts. Separate invoicing of the parts would appear to be critical to this conclusion, under Part I of the plurality opinion, but there is no reason to assume that this evidentiary element would be lacking in the business practices of Otis’ in-state counterpart. The plurality conclusion in Part I of their opinion would have enabled Otis’ in-state counterpart, if it chose to be taxed as a manufacturer for the tax years in question here, to obtain the benefits of the V2% rate under § 238-2(2) (B) by the simple expedient of separately invoicing the parts installed pursuant to construction subcontracts or modernization contracts.
This labored analysis has been made necessary by the failure of the plurality to explain its conclusion that Otis’ in-state counterpart is not taxable as a contractor under § 238-2(2) (C) or as a manufacturer under § 238-2(2) (B). I can conclude only that the plurality sees the in-state taxpayer as a manufacturer who has chosen to force itself into the mold of § 238-2(3) by refraining from providing the separate invoicing which would place it within the plurality’s reading of Alexander & Baldwin in this case. The comparison becomes even more difficult when we take into account the fact that the same business practices (for the hypothesis demands similarity) have resulted in a tax on Otis at the more favorable rate of V2%. Moreover, the discrepancy in the tax classifications and rates between Otis and its in-state counterpart not only conflicts with the basic assumptions of the hypothesis, but it is necessary to the conclusion reached by *186the plurality. In order for the comparisons made by the plurality to be favorable to Otis in relation to its in-state counterpart, Otis must be taxed at a rate of lA% upon its importation of parts, while its in-state counterpart is taxed at a rate of 4% on its importation of materials. Because the hypothesis requires that the ultimate use of all of the parts, and the manner of their disposition, must be identical, this result can be attributed by the plurality only to a mistake of the tax director in determining Otis’ tax rate. Yet if Otis and its in-state counterpart were both taxed at a 4% rate, as the plurality seems to demand, the same discrimination against Otis would exist as if both were taxed at the lA% rate. The attempt of the plurality to avoid Halliburton by demonstrating that there is in fact no discrimination is wholly unconvincing.
Because I view Halliburton as controlling, I would require that the value for use tax purposes of the parts imported by Otis be determined by excluding the value added by Otis in converting materials into finished products in its out-of-state manufacturing processes. For this purpose, I would see no difference between the parts imported by Otis for use in its maintenance and repair services and the parts imported for use in fulfilling construction subcontracts and modernization contracts. Accordingly, I would reverse the judgment of the tax appeal court on the issue dealt with in Part II of the plurality opinion, and would remand this case for a redetermination of the use tax value of the parts which are the subject of this appeal.
It was stipulated that Otis has determined average percentages to be applied to the landed value of the parts for each of the tax years, pursuant to which the total of the raw material and shipping costs included in the landed value for each of the years varied from 40% to 45%, with the remainder of the landed value being attributable to conversion and administrative costs incurred in manufacturing the parts in Otis’ factories.
The Court has very recently reiterated its adherence to this principle. In Boston Stock Exchange v. State Tax Commission, 429 U.S. 318, 329 (1977), citing Halliburton, it is said to be a “fundamental principle” that “no State may, consistent with the Commerce Clause, ‘impose a tax which discriminates against interstate *180commerce ... by providing a direct commercial advantage to local business.’ (Citations omitted.) The prohibition against discriminatory treatment of interstate commerce follows inexorably from the basic purpose of the Clause. Permitting the individual States to enact laws that favor local enterprises at the expense of out-of-state businesses ‘would invite a multiplication of preferential trade areas destructive’ of the free trade which the Clause protects. (Citation omitted).”
§ 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:
(1) If the importer or purchaser is licensed under chapter 237 and is (A) a wholesaler or jobber importing or purchasing for purposes of resale, or (B) a manufacturer importing or purchasing material or commodities which are to be incorporated by the manufacturer into a finished or saleable product (including the container or package in which the product is contained) wherein it will remain in such form as to be perceptible to the senses, and which finished or saleable product is to be sold in such manner as to result in a further tax on the activity of the manufacturer as the manufacturer or as a wholesaler, and not as a retailer, there shall be no tax, provided, that if the wholesaler, jobber, or manufacturer is also engaged in business as a retailer (so classed under chapter 237), paragraph (2)shall apply to him, but the director of taxation shall refund to him, in the manner provided under section 231-23(d) such amount of tax as he shall, to the satisfaction of the director, establish to have been paid by him to the director with respect to property which has been used by him for the purposes stated in this paragraph.
(2) If the importer or purchaser is licensed under chapter 237 and is (A) a retailer or other person importing or purchasing for purposes of resale, not exempted by paragraph (1), or (B) a manufacturer importing or purchasing material or commodities which are to be incorporated by the manufacturer into a finished or saleable product (including the container or package in which the product is contained) wherein it will remain in such form as to be perceptible to the senses, and which finished or saleable product is to be sold at retail in this State, in such manner as to result in a further tax on the activity of the manufacturer in selling such products at retail, or (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.
(3) In all other cases, four per cent of the value of the property.
1. At what rate is the use tax imposed by HRS § 238-2 upon the value of raw materials imported by an in-state taxpayer (who is engaged in a vertical, integrated business in all respects similar to Otis), licensed pursuant to HRS § 237-9 to do both a contracting business and a service business, for the purposes of manufacturing such raw materials into elevator and escalator components and parts, which after their manufacture are used by the taxpayer in
(1) The assembly thereof into new elevator and escalator units and the installation of such units in buildings pursuant to construction subcontracts?
(2) the assembly and installation thereof in the course of complete renovation work on existing elevator and escalator units under modernization contracts?
(3) the installation thereof in existing elevators and escalators in the course of the performance of regular maintenance service?
(4) the installation thereof in existing elevators and escalators in the course of performance of occasional repair service?
2. Should the in-state taxpayer described in any part of Question #1 be classified for taxation under HRS § 232-2 as a manufacturer who does not sell the product and therefore is subject to tax under HRS § 238-2(3)?