*522Concurring and Dissenting Opinion by
Senior Judge Kalish-.I respectfully dissent in part as indicated in my opinion, but concur in the majority opinion in all other respects.
CRH sells food through vending machines. The Board of Finance and Revenue found that taxpayer provides a bank of vending- machines in various locations, consisting of machines which are self-service, mechanical or electronic devices. In these locations, taxpayer may provide microwave ovens, bill-changing machines, plasticware, cups, napkins, tables and chairs. At argument before this court, counsel for taxpayer indicated that there are instances where the facility in which the vending machines are located may supply eating facilities such as tables and chairs.
The Commonwealth treats all sales from the vending machines as- taxable, except such sales of candy, chewing gum,. or sales at or from schools.
Taxpayer contends that under the Tax Reform Code (Code) the- sales of these food items are exempt from taxation, and in the alternative the imposition of the tax violates uniformity and equal protection since the identical items may be purchased in convenience stores without the assessment of the sales tax.
Section 204 of the Code provides that the sale of food items shall be exempt from the sales tax except when it is sold at restaurants and “other eating places.”
While “other eating places” is not defined in the Code, Revenue Department regulations at 61 Pa. Code §49.1(a) does define “other eating places” as “an establishment of premises where food or beverages are prepared and sold primarily for consumption on the premises, including ... a vending machine.”
In Rossi v. Commonwealth, 20 Pa. Commonwealth Ct. 517, 342 A.2d 119 (1975), this court said, “The Bu*523reau saw fit to insert the words ‘primarily for consumption on the premises’ as its interpretation of what other eating places are.” Rossi at 525, 342 at 124 (emphasis added). Thus, a sale by a vending machine may be a sale for consumption on the premises if the circumstances permit such a conclusion. • In some instances, there may be no eating facilities on the premises; in others there may; some may be supplied by the taxpayer, others by the establishment in which the machines are located. Thus, there can be no general rule, but each situation must be examined and determined on a case-by-case basis.