The numbers may have been accurate _for an engine with the 'limit emissions' mode enabled_ but it's still fraudulent if you do not make that explicitly clear.
For VAG this wasn't a case of the test not being quite the same as regular driving, it was VAG deliberately detecting a tests and altering the way the engine worked to avoid failing.
Intent matters. You can’t set out to cheat a test, succeed, and then say that it’s legal because you succeeded, any more than you can steal from a store by hiding an item under your coat and then say that it’s legal because you disguised it well enough to fool the guard.
If you think the test is bullshit, then you make that case separately. You don't lie about how you're passing it and then when caught say 'but it's the test's fault!'.