dissenting. While I must agree with the majority that the cooling tower was equipment, if not machinery, used directly in manufacturing, I do not agree that there was an exemption from the use tax in this case. Tax exemption provisions must be strictly construed in favor of the state and against the taxpayer and to doubt is to deny the exemption. Heath v. Midco Equipment Co., 256 Ark. 14, 505 S.W. 2d 739. Of course, the burden was upon the appellee to show its entitlement to exemption beyond reasonable doubt. Arkansas Beverage Company v. Heath, 257 Ark. 991, 521 S.W. 2d 835. This it failed to do in my opinion.
First, I should say that I do not consider that Ark. Stat. Ann. § 84-3106 (D)(2)(d) is an exemption separate from § 84-3106 (D)(2). The sub-section (d) merely describes one of the purposes for which machinery and equipment used directly in manufacturing articles of commerce at manufacturing and processing plants or facilities in the State of Arkansas may be purchased and used to qualify for exemption. The tax was assessed on the materials and components that went into the construction of the tower, not on the tower itself. In order to qualify for the exemption appellee must first show that the tax was assessed on machinery and equipment. This, it did not do. I cannot tell from the record before us that any item on which the tax was assessed was machinery or equipment. Certainly not all of it was.
Secondly, whatever was purchased by Research-Cottrell and used in building the cooling tower, was not used directly in producing or manufacturing, fabricating, assembling, processing, finishing or packaging electricity, as required to qualify under § 84-3106 (D) (2), before consideration can be given to the subordinate uses and purposes set out in subsections (a) through (e). In this connection, it should be emphasized that sub-section (d) did not amend the introductory language of § 84-3106 (D) (2) as the majority seems to treat it. It merely added a purpose to subsection (D).
I fear the majority has misread Act 5 of the First Extraordinary Session of 1968. Sec. 2 of that Act is an amendment of subsection (D) of § 6 of Act 487 of 1949, as amended by § 1 of Act 55 of 1955, as amended by § 1 of Act 141 of 1957, as amended by § 1 of Act 35 of 1959, as amended by § 1 of Act 140 of 1961, as amended by § 2 of Act 113 of 1967 (§ 84-3106 (D) Arkansas Stat., 1947) to read as it is reproduced in Vol. 7B Ark. Stat. Ann. Supp. 1973, and not as quoted in the majority opinion. The majority ignores the language of § 84-3106 (D) (2).
In the next place, Research-Cottrell did not purchase machinery and equipment to be installed and utilized by a manufacturing and processing plant or facility in this state. It did not install and utilize any of the items purchased for its own operation, if that could be called manufacturing. As pointed out before, the assessment is not on machinery and equipment in the first place and the question is not the use to which Research-Cottrell’s end product will be put. The question is to what use did Research-Cottrell put those items upon which the tax was assessed. Research-Cottrell did not use them to prevent air or water pollution. Its customer, Arkansas Power & Light Company, did.
Under the construction given this act by the majority, any producer of any machinery or equipment which it sells to some manufacturer in Arkansas for installation and use in Arkansas will have a use tax exemption for everything he purchases for use in producing that machinery and equipment. I submit that the General Assembly had no such intention.