(a) the Minister is satisfied that an act or omission of an exporter who has given an undertaking under subsection 269TG(4) is a violation of that undertaking; and
(b) at the time of, or at any time after, that act or omission, security has been taken under section 42 in respect of any interim duty that might be payable under section 8 of the Dumping Duty Act on goods of the kind to which the undertaking relates or the Commonwealth had the right to require and take such security;
subsection (1) of this section does not prevent the publication of a notice under subsection 269TG(1) in respect of goods that:
(c) have been exported by the exporter; and
(d) are of the kind to which the undertaking relates; and
(e) have been entered for home consumption on a day that:
(i) was not earlier than the day on which that act or omission occurred; and
(ii) was not more than 90 days before the day on which that security was taken or there was a right to require and take such security.
(4C) Despite subsections (3) to (4B), the Minister must not publish a notice under subsection 269TG(1) in respect of goods that have been entered for home consumption before the date of initiation of the investigation concerned.
Countervailing duties
(5) Subsection (1) does not prevent the publication of a notice under subsection 269TJ(1) in respect of goods that have been entered for home consumption if:
(a) within 90 days after the entry of the goods for home consumption, security has been taken under section 42 in respect of any interim duty that might be payable on goods of the same kind under section 10 of the Dumping Duty Act or, within that period, the Commonwealth had the right to require and take such security; and
(b) the Minister considers that material injury, which is difficult to repair, has been caused to an Australian industry by the export to Australia during a short period of large quantities of goods of the same kind because a countervailable subsidy has been received from the country of export or country of origin of those goods, and the Minister considers that the publication of the notice is necessary to prevent the recurrence of the injury.
(6) Before the Minister decides to publish a countervailing duty notice under subsection 269TJ(1) in circumstances referred to in subsection (5) of this section, in respect of goods that have already been entered for home consumption, the Minister must:
(a) inform the importer of the goods of the decision he or she proposes to make; and
(b) allow a reasonable opportunity for the importer of the goods to comment on the proposed decision; and
(c) give consideration to the comments provided by the importer.
(a) the Minister is satisfied that an act or omission of the Government of a country that has given an undertaking in accordance with subsection 269TJ(3) is a violation of that undertaking; and
(b) at the time of, or at any time after, that act or omission, security has been taken under section 42 in respect of any interim duty that might be payable under section 10 of the Dumping Duty Act on goods of the kind to which the undertaking relates or the Commonwealth had the right to require and take such security;
subsection (1) does not prevent the publication of a notice under subsection 269TJ(1) in respect of goods that:
(c) are the produce or manufacture of that country or have been exported from that country, as the case may be; and
(d) are of the kind to which the undertaking relates; and
(e) have been entered for home consumption on a day that:
(i) was not earlier than the day on which that act or omission occurred; and
(ii) was not more than 90 days before the day on which that security was taken or there was a right to require and take such security.
(8) Where:
(a) the Minister is satisfied that an act or omission of an exporter who has given an undertaking in accordance with subsection 269TJ(3) is a violation of that undertaking; and
(b) at the time of, or at any time after, that act or omission, security has been taken under section 42 in respect of any interim duty that might be payable under section 10 of the Dumping Duty Act on goods of the kind to which the undertaking relates or the Commonwealth had the right to require and take such security;
subsection (1) does not prevent the publication of a notice under subsection 269TJ(1) in respect of goods that:
(c) have been exported by the exporter; and
(d) are of the kind to which the undertaking relates; and
(e) have been entered for home consumption on a day that:
(i) was not earlier than the day on which that act or omission occurred; and
(ii) was not more than 90 days before the day on which that security was taken or there was a right to require and take such security.
269TP Power to specify goods
A notice under subsection 269TG(2), 269TH(2), 269TJ(2) or 269TK(2) in respect of a kind of goods, may, without limiting the generality of those provisions be expressed to apply to:
(a) goods of that kind exported from a particular country; or
(b) goods of that kind exported by a particular exporter.
269U Inquiries in relation to undertakings
(1) Where the Minister is considering, in relation to goods the subject of an application under section 269TB:
(a) whether to give a notice, in accordance with subsection 269TG(3D), to the exporter of the goods in the consignment in relation to an undertaking in relation to an Australian industry; or
(b) whether to give a notice, in accordance with subsection 269TJ(2A), to the Government of the country of origin, or of the country of export, of the goods in the consignment or to the exporter of the goods in the consignment in relation to an undertaking in relation to an Australian industry;
the Commissioner may authorise a Commission staff member in writing to convene a meeting of representatives of the Australian industry for the purpose of obtaining information and submissions from those representatives in relation to the question what terms of undertaking should be set out in the notice, if it is to be given, as the terms that may be satisfactory to the Minister.
(2) A Commission staff member authorised under subsection (1) to convene a meeting of representatives of an Australian industry shall give notice in writing to such persons as, in his or her opinion, represent the Australian industry, setting out:
(a) the day, time and place for the convening of the meeting; and
(b) the question to be considered by the meeting.
(3) The Commission staff member convening a meeting in pursuance of subsection (2):
(a) shall preside at the meeting; and
(b) may adjourn the meeting from time to time.
(4) At a meeting of representatives of an Australian industry convened in pursuance of subsection (2), the representatives attending the meeting may provide information, or make submissions, to the Commission staff member convening the meeting in relation to the question being considered by the meeting.
(5) Nothing in subsection (4) shall be taken to prevent a representative of an Australian industry who attends a meeting convened in pursuance of subsection (2) from providing information or making a submission, in relation to the question considered or to be considered at the meeting, to the Commission staff member convening the meeting otherwise than at the meeting or to the Minister.
(6) The Commission staff member convening a meeting in pursuance of subsection (2) may, subject to subsection (7), put before the meeting information in relation to the question being considered by the meeting.
(7) The Commission staff member convening a meeting in pursuance of subsection (2) shall not put before the meeting any information provided to him or her by another person that is information of a confidential nature (whether or not confidentiality was claimed in respect of the information by the person who provided the information).
(8) After the close of a meeting convened in pursuance of subsection (2), the Commission staff member convening the meeting shall furnish to the Commissioner for submission to the Minister a report in writing of the information provided and the submissions made at the meeting.
(9) Nothing in this section shall be taken, for the purposes of subsection 51(1) of the Competition and Consumer Act 2010, to authorize any act or thing other than the providing of information or the making of a submission, at a meeting of representatives of an Australian industry convened in pursuance of subsection (2), by a representative of the Australian industry to the Commission staff member convening the meeting in relation to the question being considered by the meeting.
Division 4—Dumping duty or countervailing duty assessment
269UA What this Division is about
This Division enables a reconciliation of interim duty, and final duty, payable under the Dumping Duty Act. The Division permits an importer who has paid interim duty on particular goods to apply, within specified time limits, for an assessment of duty payable on those goods. In particular, the Division provides that:
• if the duty is less than the interim duty, the excess is to be refunded;
• if the duty is more than the interim duty, the interim duty is treated as duty and the balance waived;
• if the importer fails, within the time limits available, to seek an assessment of duty, the interim duty paid on the goods is taken to be duty actually payable.
269V Importers may apply for duty assessment in certain circumstances
(1) An importer of goods on which, under the Dumping Duty Act, an interim duty has been paid may, subject to subsection (2), by application lodged with the Commissioner, request that the Minister make an assessment of the liability of those goods to duty under that Act.
(2) An application for an assessment of duty under subsection (1) may only be lodged if:
(a) the application is lodged not more than 6 months after the end of the particular importation period in which the goods the subject of the application were entered for home consumption; and
(b) the importer contends that the total amount of duty payable in respect of those goods under the Dumping Duty Act is less, by a specified amount, than the total amount of interim duty that has been paid on those goods under that Act.
269W Manner of making applications for duty assessment
(1) An application for an assessment of duty on goods of a particular kind entered for home consumption during a particular importation period must be in writing and contain:
(a) a full description of the goods of that kind in each consignment imported during the particular importation period; and
(b) information concerning the amount of interim duty paid on the goods of that kind in each such consignment; and
(c) if an interim dumping duty has been imposed—a statement of the amounts that, in the opinion of the applicant, are the normal value and the export price of goods of that kind in each such consignment; and
(d) if an interim countervailing duty has been imposed—a statement of the amounts that, in the opinion of the applicant, are:
(i) the amount of the countervailable subsidy received on goods of that kind in each such consignment; and
(ii) the amount of the export price of goods of that kind in each such consignment; and
(e) a statement of the amount by which the applicant contends that the total interim duty paid on those goods exceeds the total duty payable under the Dumping Duty Act.
(1A) The application must also contain either:
(a) sufficient evidence to establish that the applicant’s opinion of the amounts described in whichever of paragraphs (1)(c) and (d) apply is correct; or
(b) both of the following:
(i) the evidence the applicant has to establish that the applicant’s opinion of the amounts described in whichever of paragraphs (1)(c) and (d) apply is correct;
(ii) a commitment that someone else will give the Commissioner further evidence within 30 days after lodgment or such longer period as the Commissioner allows, so that the Commissioner will then have sufficient evidence to establish that the applicant’s opinion of those amounts is correct.
(1B) If the interim duty on the goods covered by the application was calculated using the export price of the goods worked out (under paragraph 269TAB(1)(b) or otherwise) as the difference between:
(a) the price at which the importer of the goods sold them, in the condition in which they were imported, to someone who was not an associate of the importer; and
(b) the prescribed deductions (as defined in subsection 269TAB(2)) relating to the goods;
the requirement in subsection (1A) of this section is met only if the evidence referred to in that subsection includes evidence of the things described in paragraphs (a) and (b) of this subsection.
(2) An application must be lodged with the Commissioner in the manner approved under section 269SMS.
(2A) The application is taken to have been lodged when the application is first received by a Commission staff member doing duty in relation to final duty assessment applications.
(3) The day on which an application is taken to have been lodged must be recorded on the application.
269X Consideration of duty assessment applications
(1) The Commissioner must, as soon as practicable after the lodgment of an application for assessment of duty in respect of goods that were entered for home consumption during a particular importation period and within 155 days after the lodgement of that application or such longer period as the Minister allows under section 269ZHI, examine the application and decide what recommendation to make to the Minister under subsection (6).
Note: The Commissioner may be required to reject the application or be able to terminate the examination of it without deciding what recommendation to make to the Minister. See section 269YA.
(2) If the Commissioner considers that any person (including the applicant) may be able to supply information relevant to the consideration of the application, the Commissioner may, by notice in writing, request the supply of that information, in writing:
(a) if the information is sought from a person other than the applicant—within a period specified in the notice ending not later than 120 days after the lodgment of the application; and
(b) if the information is sought from the applicant—within a period specified in the notice ending not later than 155 days after the lodgment of the application.
(3) Where the Commissioner proposes to take into account any relevant information that was not supplied to the Commissioner by the applicant, the Commissioner must:
(a) give the applicant a copy of the information that he or she proposes to take into account unless, in the opinion of the Commissioner, the provision of that information would adversely affect the business or commercial interests of a person supplying the information; and
(b) invite the applicant, within a specified period ending not later than 155 days after the lodgment of the application, to make any further submission the applicant considers appropriate in relation to that information.
(3A) However, the Commissioner must not give the applicant information that the exporter of goods covered by the application supplied to the Commissioner (whether as a result of a request under subsection (2) or otherwise) that is relevant to working out:
(a) the normal value of the goods; or
(b) the countervailable subsidy relating to the goods; or
(c) the export price of the goods;
unless the exporter indicates that he or she is willing for the Commissioner to give the information to the applicant under paragraph (3)(a).
(4) If a person refuses or fails to supply information or to make a submission within the period allowed but subsequently supplies that information or makes that submission, the Commissioner may disregard that information or submission in considering the application.
(5) On the basis of the information and evidence contained in the application, any other information provided under subsection (2) or (3) that is not disregarded under subsection (4) and any other information the Commissioner considers relevant, the Commissioner must:
(a) provisionally ascertain, in relation to each consignment of goods to which the application relates, each variable factor relevant to the determination of duty payable on the goods under the Dumping Duty Act; and
(b) having regard to those variable factors as so provisionally ascertained and, where appropriate, to the non‑injurious price of goods of that kind—provisionally calculate, in respect of each such consignment, the amount of duty payable under the Dumping Duty Act.
(5A) Subsection (5B) of this section applies if the Commissioner proposes to ascertain provisionally, for the purposes of paragraph (5)(a) of this section, the export price of goods (under paragraph 269TAB(1)(b) or otherwise) as the difference between:
(a) the price at which the importer of the goods sold them, in the condition in which they were imported, to someone who was not an associate of the importer; and
(b) the prescribed deductions (as defined in subsection 269TAB(2)) relating to the goods.
(5B) In provisionally ascertaining the export price of goods as described in subsection (5A), the Commissioner must:
(a) take account of the following in relation to the goods:
(i) any change in normal value;
(ii) any change in costs incurred between importation and resale;
(iii) any movement in resale price which is duly reflected in subsequent selling prices; and
(b) despite paragraph 269TAB(1)(b), not deduct the amount of interim duty if the Commissioner has conclusive evidence of the things mentioned in subparagraphs (a)(i), (ii) and (iii) of this subsection.