10Countervailing duties

#### 10 Countervailing duties (1) There is imposed, and there must be collected and paid, on goods: (a) to which this section applies by virtue of a notice under subsection 269TJ(1) or (2) of the Customs Act; and (b) in relation to which a countervailable subsidy is received; a special duty of Customs, to be known as countervailing duty. (2) The countervailing duty on goods to which this section applies is to be calculated in accordance with subsection (3E). (3) Pending final assessment of the countervailing duty payable on goods the subject of a notice under subsection 269TJ(1) or (2) of the Customs Act of the Customs Act, an interim countervailing duty is payable on those goods. (3A) Subject to subsection (3B), the interim countervailing duty payable on goods the subject of a notice under subsection 269TJ(1) or (2) of the Customs Act is an amount equal to the countervailable subsidy in respect of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice. (3B) The Minister must, by signed notice, direct that the interim countervailing duty in respect of particular goods to which this section applies by virtue of a declaration under subsection 269TJ(1) or (2) of the Customs Act be ascertained: (a) as a proportion of the export price of those particular goods; or (b) by reference to a measure of the quantity of those particular goods; or (c) by reference to a combination of a proportion of the export price of those particular goods and a measure of the quantity of those particular goods; and the notice has effect accordingly. (3C) The Minister must, in exercising his or her powers under subsection (3B) in respect of particular goods the subject of a notice under subsection 269TJ(1) or (2) of the Customs Act, if the non‑injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice is less than the sum of: (a) the countervailable subsidy in respect of goods of that kind as so ascertained, or last so ascertained; and (b) the export price of goods of that kind as so ascertained, or last so ascertained; have regard to the desirability of fixing a lesser amount of duty such that the sum of that export price and the lesser duty does not exceed that non‑injurious price. (3CA) However, subsection (3C) does not require the Minister to have regard to the matter in that subsection if the Minister is satisfied that either or both of the following apply in relation to the goods the subject of the notice under subsection 269TJ(1) or (2) of the Customs Act: (a) the country in relation to which the countervailable subsidy has been provided has not complied with Article 25 of the Agreement on Subsidies and Countervailing Measures for the compliance period; (b) there is an Australian industry in respect of like goods that consists of at least 2 small‑medium enterprises, whether or not that industry consists of other enterprises. (3D) If, in the circumstances specified in section 269TJA of the Customs Act, both a notice under section 269TJ of that Act and a notice under section 269TG of that Act are published at the same time and in respect of the same goods, the Minister must, in exercising his or her powers under subsection (3B) in relation to interim countervailing duty in respect of the goods, have regard to the desirability of fixing the amount of interim countervailing duty in respect of the goods such that the sum of: (a) the export price of goods of that kind, as ascertained, or last ascertained, by the Minister for the purpose of those notices; and (b) the amount of the interim countervailing duty as so fixed; and (c) the amount of interim dumping duty as fixed under section 8; does not exceed the non‑injurious price of goods of that kind, as ascertained, or last ascertained, by the Minister for the purpose of those notices. (3DA) However, subsection (3D) does not require the Minister to have regard to the matter in that subsection if the Minister is satisfied that one or more of the following apply in relation to the goods the subject of the notice under subsection 269TJ(1) or (2) of the Customs Act: (a) the country in relation to which the countervailable subsidy has been provided has not complied with Article 25 of the Agreement on Subsidies and Countervailing Measures for the compliance period; (b) there is an Australian industry in respect of like goods that consists of at least 2 small‑medium enterprises, whether or not that industry consists of other enterprises; (c) if the normal value of the goods was ascertained under Part XVB of that Act—the normal value of the goods was not ascertained under subsection 269TAC(1) of that Act because of the operation of subparagraph 269TAC(2)(a)(ii) of that Act. (3E) The countervailing duty payable on goods the subject of a notice under subsection 269TJ(1) or (2) of the Customs Act is an amount equal to: (a) unless paragraph (b) applies—the countervailable subsidy in respect of those particular goods; or (b) if, in a notice under subsection (3B), the Minister determines that the interim countervailing duty payable on those particular goods is to be ascertained by reference to the non‑injurious price of goods of that kind—the difference between: (i) the amount that the Minister ascertains to be the export price of those particular goods; and (ii) the lower of the sum of the amounts that the Minister ascertains to be the export price of, and the countervailable subsidy in respect of, those particular goods and the non‑injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice under subsection 269TJ(1) or (2). (5B) Where the Minister signs a notice under subsection (3B), the Minister shall cause a copy of that notice to be published on the Anti‑Dumping Commission’s website unless in the opinion of the Minister, the publication of that notice would adversely affect the business or commercial interests of any person. (6) A notice under subsection (3B) applies to goods entered for home consumption on or after a day specified in the notice, which may be earlier than the day of publication of the notice but may not be a day on which an earlier notice under that subsection applied to the goods. (8) The Minister may, by notice in writing, exempt goods from interim countervailing duty or countervailing duty if he or she is satisfied: (a) that like or directly competitive goods are not offered for sale in Australia to all purchasers on equal terms under like conditions having regard to the custom and usage of trade; (aa) that a Tariff Concession Order under Part XVA of the Customs Act 1901 in respect of the goods is in force; (b) that: (i) where the goods are goods to which section 8 of the Customs Tariff Act 1995 applies—the item in Schedule 4 to that Act that applies to the goods is expressed to apply to goods, or to a class or kind of goods, as prescribed by by‑law; and (ii) suitably equivalent goods the produce or manufacture of Australia are not reasonably available; (c) that: (i) the tariff classification in Schedule 3 to that Act that applies to the goods is such that no duty is payable in respect of the goods or the duty payable in respect of the goods is at a rate equivalent to a rate payable under Schedule 4 on the goods; and (ii) suitably equivalent goods the produce or manufacture of Australia are not reasonably available; or (d) that the goods, being articles of merchandise, are for use as samples for the sale of similar goods. (9) Where the Minister exempts goods from interim countervailing duty or countervailing duty under subsection (8) because he or she is satisfied as to a matter specified in paragraphs (8)(a), (b) and (c), the instrument of exemption shall be published on the Anti‑Dumping Commission’s website. (9A) An instrument of exemption under subsection (8) takes effect on the day specified in the instrument. That day may be earlier or later than the day the instrument is made but, if the exemption is given because of an application for exemption, must not be earlier than the day the application is made. (10) In this section, a reference to a Tariff Concession Order includes a reference to a Commercial Tariff Concession Order made under Part XVA of the Customs Act as in force before section 10 of the Customs Legislation (Tariff Concessions and Anti‑Dumping) Amendment Act 1992 commences.