11Third country countervailing duties

#### 11 Third country 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 269TK(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 third country countervailing duty, calculated in accordance with subsection (7). (2) Pending final assessment of the third country countervailing duty payable on goods the subject of a notice under subsection 269TK(1) or (2) of the Customs Act, an interim third country countervailing duty is payable on those goods. (3) Subject to subsection (4), the interim third country countervailing duty payable on goods the subject of a notice under subsection 269TK(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. (4) 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 notice under subsection 269TK(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. (5) The Minister must, in exercising his or her powers under subsection (4) in respect of particular goods the subject of a notice under subsection 269TK(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 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. (5A) However, subsection (5) 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 269TK(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. (6) If the Minister signs a notice under subsection (4), the Minister must 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. (7) The third country countervailing duty payable on goods the subject of a notice under subsection 269TK(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 (4), 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 269TK(1) or (2). (7A) A notice under subsection (4) 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. (7B) If the Minister has determined, under subsection 269TK(3) of the Customs Act, the amount of any countervailable subsidy in respect of goods to which this section applies by virtue of a notice under subsection 269TK(1) or (2) of that Act, that amount is to be taken to be the amount of that countervailable subsidy for the purposes of this section. (8) The Minister may, by notice in writing, exempt goods from interim third country countervailing duty or third country countervailing duty if he or she is satisfied: (a) that like or directly competitive goods are not offered or sold in Australia to all purchasers on equal terms under like conditions having regard to the custom and usage of trade; or (b) 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 third country countervailing duty or third country countervailing duty under subsection (8) because he or she is satisfied as to a matter specified under paragraph (8)(a), the instrument of exemption shall be published on the Anti‑Dumping Commission’s website. (10) 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.