8Dumping duties

#### 8 Dumping duties (1) This section does not apply to goods that are New Zealand originating goods under Division 1E of Part VIII of the Customs Act 1901. (2) 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 269TG(1) or (2) of the Customs Act; and (b) in relation to which the amount of the export price is less than the amount of the normal value; a special duty of Customs, to be known as dumping duty, calculated in accordance with subsection (6). (3) Pending final assessment of the dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act, an interim dumping duty is payable on those goods. Calculation of interim dumping duty (5) The Minister must, by signed notice, determine that the interim dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act is an amount worked out in accordance with a method specified in that signed notice. That method must be one of the methods referred to in subsection (5BB). Notice has effect accordingly (5A) A notice under subsection (5) has effect accordingly. Principles to be followed in specifying method of calculation (5B) If: (a) the Minister is required to perform the function under subsection (5) in respect of goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act; and (b) 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 normal value of goods of that kind as so ascertained, or last so ascertained; the Minister must, in performing that function, have regard to the desirability of specifying a method such that the sum of the following does not exceed that non‑injurious price: (c) the export price of goods of that kind as so ascertained or last so ascertained; (d) the interim dumping duty payable on the goods the subject of the notice. (5BAA) However, subsection (5B) 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 269TG(1) or (2) of the Customs Act: (a) 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; (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. (5BA) If: (a) the Minister is required to perform the function under subsection (5) in respect of goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act; and (b) in respect of the same goods and at the same time as that notice was published, a notice under section 269TJ of that Act was also published; the Minister must, in performing that function, have regard to the desirability of specifying a method such that the sum of the following 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: (c) the export price of goods of that kind as so ascertained or last so ascertained; (d) the interim dumping duty payable on the goods the subject of the notice under subsection 269TG(1) or (2) of the Customs Act; (e) the interim countervailing duty payable under section 10 on the goods the subject of the notice under section 269TJ of that Act. (5BAAA) However, subsection (5BA) 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 269TG(1) or (2) of the Customs Act: (a) 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; (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 a countervailable subsidy has been received in respect of the goods—the country in relation to which the subsidy has been provided has not complied with Article 25 of the Agreement on Subsidies and Countervailing Measures for the compliance period. Methods available for calculating interim dumping duty (5BB) The regulations must prescribe the methods for working out the amount of interim dumping duty payable on goods the subject of notices under subsection 269TG(1) or (2) of the Customs Act. (5BC) Those methods must refer to one or more of the following matters: (a) the export price of the goods the subject of the notice under subsection 269TG(1) or (2) of the Customs Act; (b) the export price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice; (c) the normal value of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice; (d) the non‑injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice. (5BD) Those methods may refer to a matter mentioned in paragraph (5BC)(a) as ascertained by the Minister. (5BE) Subsection (5BC) does not limit the matters that may be referred to in those methods. Publication of interim dumping duty notice (5C) If the Minister signs a notice under subsection (5), 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. Application of interim dumping duty notice (5D) A notice under subsection (5) 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. Calculation of final dumping duty (6) The dumping duty payable on goods the subject of a notice under subsection 269TG(1) or (2) of the Customs Act is an amount equal to: (a) unless paragraph (b) applies—the difference between the amounts that the Minister ascertains to be the export price and the normal value of those particular goods; or (b) if the interim dumping duty payable on those particular goods is ascertained by reference to the non‑injurious price of goods of that kind as ascertained, or last ascertained, by the Minister for the purpose of the notice—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 amount that the Minister ascertains to be the normal value of those particular goods and that non‑injurious price. Exemptions (7) The Minister may, by notice in writing, exempt goods from interim dumping duty and dumping 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; (b) that a Tariff Concession Order under Part XVA of the Customs Act 1901 in respect of the goods is in force; (c) 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; (d) 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 (e) that the goods, being articles of merchandise, are for use as samples for the sale of similar goods. (8) Where the Minister exempts goods from interim dumping duty and dumping duty under subsection (7) by reason of his or her being satisfied as to a matter specified in paragraph (7)(a), (c) or (d), the instrument of exemption shall be published on the Anti‑Dumping Commission’s website. (8A) An instrument of exemption under subsection (7) 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. Interpretation (9) 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.