Commonwealth Consolidated Acts Commonwealth Consolidated Acts(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.
An expression used in this subsection and subparagraph 3.3 of Article 9 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 set out in Annex 1A to the World Trade Organization Agreement has the same meaning in this subsection as it has in that subparagraph.
(6) On the basis of the provisional calculation of duty referred to in paragraph (5)(b), the Commissioner must decide:
(a) if satisfied that the total interim duty paid on the goods the subject of the application exceeds the total duty payable under the Dumping Duty Act by at least the amount contended in the application--to recommend to the Minister:
(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; and
(ii) that the Minister order a repayment of the amount of interim duty overpaid; or
(b) if satisfied that the total interim duty paid on the goods the subject of the application exceeds the total duty payable under the Dumping Duty Act but not to the extent contended in the application--to recommend to the Minister:
(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; and
(ii) that the Minister order a repayment of the amount of interim duty overpaid; or
(c) if satisfied that the total amount of duty payable under the Dumping Duty Act on the goods the subject of the application is equal to or exceeds the total of interim duty that was paid on the goods--to recommend to the Minister:
(i) that the Minister make an assessment of duty by ascertaining, for each consignment of those goods, the variable factors as so provisionally ascertained; but
(ii) that the Minister order that any duty in excess of the interim duty paid on those goods be waived.
(7) As soon as practicable, but not later than 7 days after making a decision under subsection (6), the Commissioner must:
(a) notify the applicant, in writing, of the decision made; and
(b) if the decision is a negative preliminary decision:
(i) inform the applicant of the reasons why the Commissioner made the decision; and
(ii) inform the applicant of the applicant's right, within 30 days of the receipt of the notification, to apply for a review of the Commissioner's decision by the Review Panel under Division 9.
(8) The Commissioner must:
(a) if he or she has made a positive preliminary decision--recommend to the Minister, not later than 7 days after making the decision, that the Minister give effect to that decision; and
(b) if he or she has made a negative preliminary decision and the applicant has not exercised the right to seek a review of the decision by the Review Panel--recommend to the Minister, not later than 7 days after the end of the period available for seeking review of the decision, that the Minister give effect to that decision.