Exactly, there is a difference between intentionally deceiving the agency, vs trying to work within the bounds and maybe getting it wrong or there being some miscommunication somewhere. At this point I don't think we have any evidence of the former, Cummins did not actually admit to doing anything wrong they're simply paying the fine to move on.
I have a hard time believing that any diesel company would take a chance on a defeat device/software after VW and Eco Diesel, but of course anything is possible.