The opinion
Bell, J.,
dissenting. In my opinion the items in-7 eluded in the first group involved herein, i. e., the tanks and roustabout crane, are used “directly in the production of tangible personal property for sale by * * * processing, refining,” and under the rule of Mead Corp. v. Glander, Tax Commr., 153 Ohio St., 539 , 93 N. E. (2d), 19, their sale or use should be held as nontaxable.
In discussing the items included in the second class of property, consisting of articles and equipment used at and in connection with gasoline and service stations, the following grouping has been resorted to:
Advertising Devices or Display Equipment.
Included in this group are Sohio neon signs, cloth or canvas pennants, curb stands, desks, workbenches and display shelves. All these articles are intended to bring, and are doubtless effective in bringing, customers into the service stations and presenting to them visually the articles which may be purchased there. Their sole purpose is to induce a sale. Such a use is certainly a direct one in making a sale.
Items Used in “Package Sales” of Gasoline and Oil.
Included in this group are air hose and reels, air meters, towers, standards and tire flators, windshield tissues, white wipers and hoodsup napkins, windshield service cabinets, radiator fill pails, battery service kits and tools and gauge sticks.
Although most of these items may be considered “service” items, they are nevertheless items of service which the customer has learned to expect and now demands and without which he would take his business elsewhere. To say that they are indirect in the making of sales of gasoline, oil and tires is to blink one’s *70 eyes at the reality of modern-day merchandising necessities.
Items Used in Sale of Oil and Grease.
■ Included in this group are drain oil cans, lubricating equipment, lifts and parts, air compressors and parts, fender covers, transmission heaters, transmission tools, and oily waste cans.
Before new oil can be put into the crankcase of an automobile the old oil must be drained out. Hence, the drain can is directly used in the sale of new oil. It is rare that oil or grease is sold by a filling station and not immediately put into an automobile. The lubricating equipment, lifts and air compressors are indispensable in getting oil and grease into the automobile and so must be considered as being used directly in making the sale of the oil and grease. Fender covers are used directly in the consummation of any sale that requires the lifting of the hood of an automobile. Few customers would return to a service station for a second purchase if their automobiles had been returned to them previously with the fenders covered with oil or grease.
A transmission heater is essential in cold weather to heat old gear oil in a transmission prior to replacing it with new, and the transmission tools are specially designed to permit the placing of new gear oil in the transmission. Consequently, both are directly used in the sale of gear oil for transmissions.
After the cheeking of the oil level in a crankcase to determine the quantity of oil to be sold, the cloth or waste used to wipe off the oil gauge stick is thrown into the oily waste can. Oil and grease cannot be sold without some spillage and the waste is used to wipe up such spillage. A receptacle for this waste thus is tied in directly with the sale of oil and grease.
*71 Items Used in Sales off the Premises.
Included in this group are the fuel oil tank trucks, Yentalarm signals and aircraft refueler tank trailers and parts.
The Yentalarm signal is a whistling device put on a customer’s fuel oil tank and is used to determine when the tank is approaching full capacity. It is directly used in making a sale of fuel oil at a customer’s home. The fuel oil tank trucks and the aircraft refueler tank trailers and parts are not different from the tanks, pumps, nozzles and hoses used at the service stations and under Rule 44 of the Tax Commissioner their sale or use should be held to be excepted from the sales and use tax.
Items Used in Sales of Tires.
Included in this group are hydraulic jacks, pit lift jacks, axle stands, jacks and trestle jacks, tire tools and air and tire gauges.
Rare would be the customer buying a tire who would not want it mounted on a wheel, inflated and put either on or in his automobile. To accomplish that sale at one time or another, all these items would be used. They are thus used directly in making a sale of tires.
Items Used to Determine Needs of Customers.
Included in this group are underhood record cards and cardholders, mystic check tabs, fast battery chargers, battery safety meters, spark plug testers and current testers.
The last four of these items may also be placed in the “package sale” group. They are, however, also directly connected with a sale in that they are devices used by the filling stations to determine the customer’s need to purchase new equipment. The fast battery charger has the added function of maintaining' a charge in new batteries so that they are in a condition *72 to be sold. Tbe cards, cardholders and mystic check tabs are used to advise the customer of his need for oil change and lubrication, and thus are used directly in the sale of oil and grease.
The decision of the Board of Tax Appeals should be reversed.
Stewart, J., concurs in the foregoing dissenting opinion.