JUDGMENT : A. Pasayat, J. - Two points are involved in this writ application. First p relates to validity of levy of surcharge under the Orissa Sales Tax, 1947 (in short, 'the Act'), and second point urged is that in view of the dispute raised by the petitioner about payability of surcharge, action u/s 13 (4) (a) of the Act was not permissible. Learned counsel for the Revenue submits that in view of the decision of this Court in Sitania Enterprises v. State of Orissa : (1994) 92 STC 524, the first plea is unsustainable. So far as the second question is concerned, it is submitted that since the petitioner has accepted the turnover, it was not permissible for it to withdraw part of the surcharge, and therefore action u/s 13 (4) (a) is proper. 2. Question of validity of levy of surchage was examined in large number of cases and the matter has been concluded in Sitania Enterprisers (supra) holding the levy to be proper. The challenge fails in that regard. 3. Provisions of Section 13 (4) (a) of the Act are attracted only when returns are furnished without showing full payment of tax admitted to be due and only then can a notice demanding payment be issued thereunder. There is a difference between 'tax due' and 'tax payable'. Form of notice of demand (Form-X) u/s 13 (4) of the Act uses the expression "a sum of Rs.......has been determined as the dues payable". Section 13 (4) (a) does not involve any determination of tax payable by a dealer. u/s 13 (4) the amount of tax due where the returns are furnished without receipt showing full payment thereof is to be paid by the dealer within thirty days from the date of service of the notice issued for the purpose. Rule 32 of the Orissa Sales Tax Rules, 1947 (in short 'Rules') deals with "Notice of Demand". It provides that in respect of any amount found payable by a dealer under Sub-section (4) of Section 13, a notice of demand in From X is to be served. Only in cases where the amount indicated by the dealer to be payable has not been paid in full by it, Section 13 (4) (a) comes into operation. Where there is dispute about payability, it has no application. The notice of demand is therefore, defective. Only in cases where the amount indicated by the dealer to be payable has not been paid in full by it, Section 13 (4) (a) comes into operation. Where there is dispute about payability, it has no application. The notice of demand is therefore, defective. Same view was expressed in Food Corporation of India v. Sales Tax Officer : (1990) 78 STC 53. Since action u/s 13 (4) (a) can be initiated only in case of default in payment of tax admitted in terms of a return the orders passed by the Sales Tax Officer in the cake at hand were unauthorised and without jurisdiction. There is another angle to the controversy also. Where the admitted tax is not paid, resort can be taken to Section 13 (4) (a) without any notice to the dealer to have its say. But where the dealer does not accept it liability to pay the tax (including surcharge) the situation would be different. The authorities are not helpless to deal with dealers who without sufficient cause furnish incorrect return or information affecting or intending to affect the quantum of tax payable. In an appropriate case action u/s 12 (4) (a) can be taken. 4. Accordingly we set aside the order under Annexure-2 and consequently the demand raised under Annexure-3. It is, however, open to the Sales Tax Officer to take action in respect of the surcharge payable in view of the decision in Sitania Enterprisers case (supra). The writ application is accordingly disposed of. No cost. R.K. Dash, J. 5. I agree.